Can a lawyer represent a corporation in litigation when the lawyer's partner is an officer of that corporation who will testify?

Plain-English summary

The committee considered two attorneys who are the principals of a professional corporation and serve as counsel for a land-holding corporation. One of the attorneys is the managing director, an officer, and a shareholder of that land-holding corporation, and will testify as a witness for it in a contested condemnation proceeding. The committee concluded that, on those facts, neither attorney may represent the land-holding corporation, citing DR 5-101(B).

Currency note

This opinion was issued in 1985, under Virginia's former Code of Professional Responsibility, before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. The committee note records that under current Rule 3.7(c), a lawyer's disqualification for having to testify is no longer imputed to the lawyer's firm unless there is an actual conflict of interest under Rule 1.7 or Rule 1.9. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer represent a company when a partner will testify as the company's officer?

A: Under this 1985 opinion, no; the committee concluded neither principal of the professional corporation could represent the land-holding corporation where one was its testifying officer.

Q: Would the result differ under current rules?

A: The committee note states that under current Rule 3.7(c), the testifying lawyer's disqualification is not imputed to the firm unless there is an actual conflict under Rule 1.7 or Rule 1.9.

Background and rules framework

The opinion applies the former Code's DR 5-101(B), the lawyer-as-witness rule, in the context of a closely held client entity whose officer is also one of its lawyers. The committee note maps the question onto current Virginia Rule 3.7(c) on imputation of the advocate-witness disqualification, corresponding to ABA Model Rule 3.7.

Citations and references

Rules of Professional Conduct:

• DR 5-101(B) (lawyer as witness) (former Code)
• Virginia Rule 3.7(c) / ABA Model Rule 3.7 (lawyer as witness; imputation to the firm)

See also

• VA LEO 960: A Partner Testifying While the Firm Represents It on Fees
• VA LEO 958: Representing a Law Partner in a Private Dispute
• VA LEO 814: A Lawyer's Personal Interest in the Litigation

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/0729.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

LEGAL ETHICS OPINION 729

CONFLICT OF INTEREST- ATTORNEY
AS WITNESS.

When two attorneys are the principals of a professional corporation and are counsel for
a land holding corporation for which one of the attorneys is the managing director, an
officer and shareholder who will testify as a witness for the land holding corporation in a
contested condemnation proceeding, neither attorney may represent the land holding
corporation. [See: DR:5-101(B)]

Committee Opinion
November 1, 1985

Legal Ethics Committee Notes. – See Rule 3.7(c) stating that there is no longer
disqualification of the entire firm when a lawyer must testify, unless representation would
create a conflict under Rule 1.7 or Rule 1.9. Under Rule 3.7(c), this disqualification is
not imputed to the lawyer’s firm unless there is an actual conflict of interest.