Ezel / Ethics Opinions / WISBAR
WISBAR 1983

Can a lawyer call a member of the same firm, such as an accountant partner, as an expert witness for the client in a divorce trial?

Short answer: The opinion concluded that it is improper for a member of the lawyer's firm to testify for the client on contested issues in a divorce trial, because the testimony comes from an interested witness and puts the advocate in the position of arguing a firm member's credibility, subject only to the four exceptions in SCR 20.24(2).

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This page answers the general question as of 1983. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.

Currency note: this opinion is from 1983
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
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 Not binding precedent.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

Opinion E-83-23 addressed divorce trials in which the tax aspects of a proposed property division, maintenance, and support are at issue, where an accountant's testimony is often needed to value assets and prove tax effects. The question was whether an attorney may use testimony from members of the attorney's own firm for the client in that situation.

The committee concluded it would be improper for an attorney from the firm to testify for the client. Drawing on ABA Formal Opinion 339 and the former Code's provisions (SCR 20.23(2)(h), reflecting EC 5-9 and 5-10), it explained that the principal objection is that the client's case is presented through the testimony of an obviously interested witness, putting the advocate in the unseemly position of arguing his own credibility or that of a lawyer in his firm; the weight of such testimony may be discounted, sometimes to the client's detriment, and the practice may handicap opposing counsel in challenging the witness. The committee cited the Wisconsin Supreme Court's statements in Harris v. State and Peterson v. Warren that the roles of witness and advocate are inconsistent and disfavored, and noted that ABA Formal Opinion 339 treats another firm member as at least financially interested in the outcome, so that member's testimony is equally suspect and improper. The committee identified the four exceptions in SCR 20.24(2), under which firm testimony is permitted when it relates solely to an uncontested matter, solely to a matter of formality, solely to the nature and value of the firm's legal services in the case, or to any matter where refusing to continue as trial counsel would work a substantial hardship on the client due to the firm's distinctive value.

Currency note

This opinion was issued in 1983, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it analyzes conduct under the former Code. The lawyer-as-witness question, including the exceptions, is now governed by SCR 20:3.7 / Model 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 call an accountant from the same firm to testify as the client's expert in a divorce?

A: The committee concluded no for contested issues; firm-member testimony is treated as that of an interested witness and is improper outside the four exceptions.

Q: Why is firm-member testimony disfavored?

A: The committee explained it presents the case through an interested witness, forces the advocate to argue a firm member's credibility, and may handicap opposing counsel, citing ABA Formal Opinion 339 and Wisconsin case law.

Q: Are there any exceptions?

A: Yes. The committee identified four exceptions in SCR 20.24(2): uncontested matters, matters of formality, the value of the firm's own legal services, and cases where withdrawal would cause the client substantial hardship.

Background and rules framework

The opinion interpreted the former Code's lawyer-as-witness provisions (SCR 20.23(2)(h) and the exceptions in SCR 20.24(2)), drawing on ABA Formal Opinion 339 and Wisconsin Supreme Court decisions. That subject is now governed by SCR 20:3.7 / Model Rule 3.7.

Citations and references

Rules of Professional Conduct:

  • Wis. SCR 20.23(2)(h), 20.24(2) / Model Rule 3.7 (lawyer as witness; exceptions) (former Code provisions)

Cases:

  • Harris v. State, 78 Wis. 2d 357, 254 N.W.2d 291 (1976), roles of witness and advocate
  • Peterson v. Warren, 31 Wis. 2d 547, 143 N.W.2d 560 (1966), attorney testifying for client

Other opinions cited:

  • ABA Formal Opinion 339 (Jan. 31, 1975)

See also

Source

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