Can a lawyer call a shareholder, employee lawyer, or nonlawyer employee of the same firm as an expert witness in a divorce case?

Plain-English summary

Opinion E-84-14 built on Formal Opinion E-83-23, which held that it is improper for a lawyer to call a partner as an expert witness in a divorce case. The question was whether E-83-23 also applies to shareholders of a professional corporation, employee lawyers of a professional corporation, and nonlawyer employees (such as accountants) of either a partnership or a professional corporation.

The committee concluded that E-83-23 applies equally to shareholders and employee lawyers of a professional corporation, because the same concerns are present. If such a person testified for a client of a lawyer from the same firm, the case would be presented through the testimony of an obviously interested witness, and the lawyer would be put in the unseemly position of arguing the credibility of a lawyer from his or her own firm; such persons also have a financial interest, direct or indirect, in the firm's solvency and so are at least financially interested in the outcome. Calling a shareholder or employee lawyer of the professional corporation as an expert witness in a divorce proceeding would therefore be improper (the committee cited SCR 20.24(2)). The committee added that the Code does not appear to prohibit a lawyer from calling a nonlawyer employee of the firm as an expert witness in a divorce proceeding.

Currency note

This opinion was issued in 1984, 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 is now analyzed under 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 Treat this page as historical context, not current guidance.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 a shareholder or employee lawyer of the same firm as an expert in a divorce case?

A: No. The committee concluded the same concerns that bar calling a partner apply to shareholders and employee lawyers of a professional corporation, so doing so is improper.

Q: What were the committee's reasons?

A: The witness would be obviously interested, the lawyer would be put in the unseemly position of arguing a firm colleague's credibility, and firm members are at least financially interested in the outcome through the firm's solvency.

Q: Does the same bar apply to a nonlawyer employee, such as an accountant?

A: No. The committee concluded the Code does not appear to prohibit calling a nonlawyer employee of the firm as an expert witness in a divorce proceeding.

Background and rules framework

The opinion extended Formal Opinion E-83-23 under the former Code (SCR 20.24(2)) to firm shareholders and employee lawyers. The conduct is now analyzed under SCR 20:3.7 / Model Rule 3.7 (lawyer as witness).

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20.24(2) / Model Rule 3.7 (lawyer as witness) (former Code provision)

Other opinions cited:

• Wisconsin Formal Opinion E-83-23 (partner as expert witness in divorce)

See also

• WI Ethics Op. E-88-6: Lawyer as Witness on Behalf of Client
• WI Ethics Op. E-85-7: Partner Representing a Partner Who Is a Party
• WI Ethics Op. EF-25-01: Lawyer as Witness

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-84-14.pdf