Can a firm represent a client at trial when a former partner of the firm is likely to be a necessary witness?

Plain-English summary

The inquiry asked whether RPC 3.7 prohibits a law firm from representing a client in litigation where the client was, and possibly still is, represented by a former partner of the firm who is likely to be a necessary witness at trial. The committee was of the opinion that, assuming the former partner continues not to be "in the same firm" and will not rejoin the firm before his ultimate retirement, and assuming no other attorneys of the firm (for example, any who might have worked with the former partner on the client's representation) are likely to be necessary witnesses, RPC 3.7 does not prohibit the firm from representing the client.

The committee added that the inquiry does raise possible conflict-of-interest issues other than RPC 3.7, and expressed no opinion about whether the representation may violate RPC 1.4 and 1.7(b).

Currency note

This opinion was issued in 1997, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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. Washington's RPC 3.7 corresponds to ABA Model Rule 3.7 (lawyer as witness).

Common questions

Q: Does the lawyer-as-witness rule bar the firm from trying the case?

A: The committee said RPC 3.7 does not prohibit the representation, given that the former partner stays out of the firm and no other firm attorney is likely to be a necessary witness.

Q: What turns on whether the witness is "in the same firm"?

A: The committee conditioned its conclusion on the former partner remaining not "in the same firm" and not rejoining before retirement, the touchstone of RPC 3.7's reach to the rest of the firm.

Q: Did the committee clear all the ethics issues?

A: No. The committee expressed no opinion on whether the representation may violate RPC 1.4 (communication) or RPC 1.7(b) (conflicts).

Background and rules framework

The opinion applied RPC 3.7 (lawyer as witness, corresponding to ABA Model Rule 3.7) to a former partner who is likely to testify. The committee made the firm's ability to continue turn on the former partner not being "in the same firm" and on no current firm lawyer being a necessary witness, and left the separate conflict and communication questions under RPC 1.4 and 1.7(b) unanswered.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 3.7 (lawyer as witness); Washington RPC 3.7

See also

• WA Ethics Op. 1703: Former Client as Opposing Witness
• WA Ethics Op. 1688: Former Client as a Witness

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=785

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Advisory Opinion: 1711
Year Issued: 1997
RPC(s): RPC 3.7
Subject: Former law partner will be necessary witness at trial

[The inquiry concerned] whether RPC 3.7 prohibits a law firm from representing a client in litigation, where the client was, and possibly still is, represented by a former partner of the law firm, who is likely to be a necessary witness at trial. The Committee is of the opinion that assuming that your former partner continues not to be "in the same firm" as you and the other attorneys of your firm and will not rejoin your firm prior to his ultimate retirement, and assuming that no other attorneys of your firm (e.g., any who might have worked with [the former partner] in his representation of [the client]) are likely to be necessary witnesses at trial, RPC 3.7 does not prohibit your firm from representing [the client].

Your inquiry does raise possible conflict of interest issues other than RPC 3.7. The Committee expresses no opinion about whether this representation may be in violation of RPC 1.4 and 1.7(b).