Could a Vermont law firm associate represent a lawyer in the same firm who was a defendant and likely witness in a civil case?

Short answer Opinion 87-06 allowed the associate to represent the lawyer-party because the lawyer would testify as a party and would not act as trial advocate.
Bar
VTBAR
Issued
1987

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This page answers the general question as of 1987. Ask about yours and see what the current Vermont Rules of Professional Conduct say for your facts, with citations.

Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

A lawyer was the sole defendant in a civil action and expected to testify. The lawyer wanted an associate from the same firm to act as counsel.

The committee allowed the arrangement. It said former DR 5-101(B)'s advocate-witness concern applied when a lawyer served as both advocate and witness, or where trial counsel's firm lawyer was a witness but not a party. Here the testifying lawyer was a party and would not act as advocate.

The opinion noted that lawyers, like other litigants, generally could choose their own counsel, and the stated facts supplied no reason to override that choice.

Currency note

This opinion was issued in 1987 under Vermont's former Code of Professional Responsibility. The Vermont Supreme Court's rules history says the Rules of Professional Conduct replaced the Code and applied to lawyer conduct after September 1, 1999; the court later made comprehensive amendments in 2009. 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 Treat this page as historical context, not current guidance.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.

Common questions

Q: Did the firm colleague’s likely testimony bar the associate from serving as counsel?

A: No. The witness was the party, not a trial advocate, so the committee found the former advocate-witness rule inapplicable.

Q: What distinction controlled the result?

A: The testifying lawyer’s role as a party rather than an advocate controlled the committee’s analysis.

Background and rules framework

The committee interpreted former Code DR 5-101(B) on lawyer-witnesses and cited cases distinguishing a lawyer-party from an advocate-witness.

Citations and references

Vermont Code of Professional Responsibility:

  • DR 5-101(B)

Cases:

  • International Electronics Corp. v. Flanzer, 527 F.2d 1288, 1294 (2d Cir. 1975), lawyer-witness roles; Bottaro v. Hatten Associates, 680 F.2d 895, 897 (2d Cir. 1982), lawyer-party witness distinction

See also

Source

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