Could a Vermont lawyer defend a land buyer when the lawyer might also testify about the closing?
Apply this to your situation
This page answers the general question as of 1979. Ask about yours and see what the current Vermont Rules of Professional Conduct say for your facts, with citations.
Plain-English summary
A lawyer who represented a land buyer at closing expected to be a fact witness when the seller sued to undo the sale. The buyer wanted the same lawyer to defend the suit because of familiarity with the matter and a likely fee benefit. The lawyer also asked whether a conflict and liability waiver could permit the dual role.
The committee said former DR 5-101(B) allowed an advocate-witness role only within specified exceptions, including uncontested or formal testimony, testimony on legal fees, or unreasonable hardship to the client. The possible fee savings did not establish unreasonable hardship, and the described facts did not clearly meet another exception. The committee therefore said the lawyer should not represent the buyer. It also cited DR 6-102's prohibition on limiting malpractice liability to a client.
Currency note
This opinion was issued in 1979 under Vermont's former Code of Professional Responsibility. The Vermont Supreme Court's rules history states that the Rules of Professional Conduct applied to lawyer conduct after September 1, 1999. Later amendments or opinions may have changed the analysis. Treat this opinion as historical context and verify current rules before relying on it.
Common questions
Q: Were lower fees enough to allow the lawyer to serve as advocate and witness?
A: No. The committee said a financial benefit alone did not show the unreasonable hardship required by that exception.
Q: Could the buyer waive the lawyer's malpractice liability?
A: The opinion cited former DR 6-102's bar on a lawyer attempting to limit personal malpractice liability to a client.
Background and rules framework
The opinion applied former DR 5-101(B) and EC 5-9 and EC 5-10 to the advocate-witness issue, and DR 6-102 and EC 6-6 to the proposed liability waiver.
Citations and references
Rules of Professional Conduct:
- Vermont Code of Professional Responsibility DR 5-101(B), DR 6-102, EC 5-9, EC 5-10, and EC 6-6
See also
- Vermont Ethics Op. 14-01: Investigator as witness and advocate
- Vermont Ethics Op. 87-06: Lawyer party and witness
Source
- Landing page: Vermont Bar Association witnesses opinions
- Original PDF: Opinion 79-14
- Vermont Supreme Court rules history, “These rules apply to lawyer conduct after September 1, 1999.”
What do the rules say today, for your facts?
This opinion is from 1979. Ezel checks the current Vermont Rules of Professional Conduct against your situation and cites the rules it relies on.
Opens in Ezel Pro.
- Checks the law as it stands today, not only this page
- Cites every source it relies on, so you can verify it
- Chat, drafting and research in one workspace