Can a lawyer's partner represent the firm in a fee-collection suit when the lawyer will testify about the fee arrangement and the value of the services?
Apply this to your situation
This page answers the general question as of 1987. Ezel answers yours: whether it's allowed on your facts, under the current Virginia Rules of Professional Conduct, with citations.
Plain-English summary
While a sole practitioner, an attorney rendered substantial services to a client who later refused to pay, so the attorney sued and the case was removed to circuit court. Since then, the attorney had formed a law firm in which all the attorneys share in the firm's profits and hold various interests in the partnership's assets, and in which all outstanding accounts payable and fees received, even those generated before the partnership was formed, are partnership assets.
On those facts, the committee opined that it was not improper for one of the attorney's partners to represent the firm in the litigation if the attorney would testify as to the fee arrangement, the services rendered, and the fair market value of the services, citing DR 5-101(B)(2). The committee note observes that current Rule 1.8(i) addresses representation by related lawyers adverse to one another with client consent.
Currency note
This opinion was issued in 1987, under Virginia's former Code of Professional Responsibility (the disciplinary rule it cites), before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. The lawyer-as-witness rule it applies is now Rule 3.7. 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 Treat this page as historical context, not current guidance.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's partner try the firm's fee-collection case when the lawyer is a witness?
A: Under this 1987 opinion, yes. The committee opined it was not improper for the partner to represent the firm while the lawyer testified about the fee arrangement, services, and value of the services, citing DR 5-101(B)(2).
Q: Why was the lawyer allowed to testify here?
A: The testimony concerned the nature and value of legal services rendered, which DR 5-101(B)(2) treated as a recognized exception to the general bar on a lawyer testifying in a matter the firm handles.
Background and rules framework
The opinion applied former Virginia DR 5-101(B)(2), the lawyer-as-witness rule and its exception allowing testimony about the nature and value of legal services rendered, which corresponds to ABA Model Rule 3.7. The committee note refers to current Virginia Rule 1.8(i) on representation involving related lawyers.
Citations and references
Rules of Professional Conduct:
- Former Virginia DR 5-101(B)(2) (lawyer as witness; exception for testimony on value of services)
- ABA Model Rule 3.7 (lawyer as witness)
See also
- VA LEO 1849: Lawyer Testifying to a Debt Owed by a Client
- VA LEO 1513: Witness-Partner and Firm Disqualification
- VA LEO 1136: Attorney as Witness and Withdrawal for Substantial Hardship
Source
- Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
- Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/0960.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
Committee Opinion
September 3, 1987
LEGAL ETHICS OPINION 960
ATTORNEY – ATTORNEY AS
WITNESS.
While a sole practitioner, an attorney rendered substantial services to a defendant who
later refused to pay for the services. Consequently, the attorney filed suit against the
defendant, which was removed to circuit court. Since that time, the attorney has formed a
law firm in which all the attorneys share in the company's profits and have various
interests relating to the assets owned by the partnership. All outstanding accounts payable
and fees received, even if generated prior to the foundation of the partnership, are assets
of the new partnership. It is not improper, given the above, for one of the attorney's
partners to represent the firm in this litigation if the attorney will be testifying as to the
fee arrangement, services rendered and fair market value of the services. [DR:5-01(B)(2)]
Committee Opinion
September 3, 1987
Legal Ethics Committee Notes. – Rule 1.8(i) now allows related lawyers to be directly
adverse to one another if the clients consent.
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