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OBA Ethics Counsel

Ethics Opinion No. 265

Adopted June 11, 1971

INQUIRY

The Opinion of the Committee has been requested on the following facts: An attorney was initially employed to defend a doctor in a state court malpractice suit. The doctor's professional liability insurer refused to defend or to indemnify the doctor against any judgment that might be rendered. Following almost three years of extensive and complicated litigation in the state court, plaintiff recovered judgment against the doctor.

Thereafter the liability insurer filed a declaratory judgment action in federal court seeking a determination that its policy did not cover the state court judgment and it claimed collusion and fraud in the procurement of that judgment.

It will probably be necessary for the attorney to testify in the federal court proceedings concerning the handling and disposition of the state court litigation. When he initially accepted employment by the doctor, it was not anticipated that it would ever be necessary for the attorney to testify on behalf of the client.

The Committee is asked:

(1) To what extent does the Code of Professional Responsibility prevent the attorney from continuing to represent the doctor in the federal court proceedings; and

(2) If it becomes "necessary and essential to the ends of justice that the client continue to receive the benefit of (his) counsel, knowledge and experience because of (his) prior representation in the state court proceeding" whether it would be proper "to continue to participate in the federal court case to the extent of assisting newly employed counsel who would handle the actual trial" of the federal court action.

OPINION

The Code of Professional Responsibility, Canon 5, requires that a lawyer should exercise independent professional judgment on behalf of a client. Ethical Considerations 5_9 and 5_10 provide as follows:

"EC 5_9. Occasionally a lawyer is called upon to decide in a particular case whether he will be a witness or an advocate. If a lawyer is both counsel and witness, he becomes more easily impeachable for interest and thus may be a less effective witness. Conversely, the opposing counsel may be handicapped in challenging the credibility of the lawyer when the lawyer also appears as an advocate in the case. An advocate who becomes a witness is in the unseemly and ineffective position of arguing his own credibility. The roles of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the cause of another, while that of a witness is to state facts objectively."

"EC 5_10. Problems incident to the lawyer-witness relationship arise at different stages; they relate either to whether a lawyer should accept employment or should withdraw from employment. Regardless of when the problem arises, his decision is to be governed by the same basic considerations. It is not objectionable for a lawyer who is a potential witness to be an advocate if it is unlikely that he will be called as a witness because his testimony would be merely cumulative or if his testimony will relate only to an uncontested issue. In the exceptional situation where it will be manifestly unfair to the client for the lawyer to refuse employment or to withdraw when he will likely be a witness on a contested issue, he may serve as advocate even though he may be a witness. In making such decision, he should determine the personal or financial sacrifice of the client that may result from his refusal of employment or withdrawal therefrom, the materiality of his testimony, and the effectiveness of his representation in view of his personal involvement. In weighing these factors, it should be clear that refusal or withdrawal will impose an unreasonable hardship upon the client before the lawyer accepts or continues the employment. Where the question arises, doubts should be resolved in favor of the lawyer testifying and against his becoming or continuing as an advocate."

Disciplinary Rule, DR 5_101(B) holds:

"A lawyer shall not accept employment in contemplated or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness, except that he may undertake the employment and he or a lawyer in his firm may testify:

(1) If the testimony will relate solely to an uncontested matter.

(2) If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to testimony.

(3) If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or his firm to the client.

(4) As to any matter, if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case."

Upon the facts given, it is the opinion of the Committee that it would be ethically improper for the attorney to continue to represent the client in the federal court proceedings. It appears clear at the outset, as the inquiry recognizes, that the attorney's testimony on behalf of the doctor will be highly material to the doctor's case. It has long been recognized by the courts that, in the absence of a statute to the contrary, the testimony of an attorney for his client is competent and the fact that he is or has been an attorney in the case affects only his credibility. At the same time the courts have condemned the practice as one that should be discouraged holding that it is a breach of ethical propriety for an attorney to accept employment in any matter in which he knows that he will be a material witness for the party seeking to employ him, or having accepted employment, for him to testify for his client except in those rare occasions where, for some unforeseen event occurring in the progress of a trial, his testimony becomes indispensable to prevent an injustice. Formal Opinion 50. Committee on Professional Ethics, American Bar Association; Advisory Opinion No. 114, Legal Ethics Committee, Oklahoma Bar Association; Onstott v. Edel, Ill., 82 N.E. 854; Flood v. Bollineier, Ia., 138 N.W. 1102; Ferraro v. Taylor, Minn., 265 N. W. 829.

The nature of the anticipated testimony apparenty will relate to contested material issues going substantially beyond mere formalities. It would seem from the facts given in the inquiry that the credibility of the expected testimony could be a highly significant aspect of the client's cause. If so, it would be unethical for the attorney to undertake or continue representation of the client in the federal court action. It is assumed that the federal court action is still in a relatively early stage, and no facts are given to suggest that this is an exceptional situation in which it would be manifestly unfair to the client to refuse, or withdraw from, employment, or that an unreasonable hardship would thereby be imposed on the client. Neither is it suggested that competent new counsel cannot be obtained.

The second part of the inquiry is more difficult because it is not clear what is meant by continuing "to participate" in the federal court case "to the extent of assisting newly employed counsel who would handle the actual trial". Assuming, as we do, that the inquiring attorney's testimony is essential to the doctor's cause, it would not only be ethical but necessary for the inquiring attorney to testify as a witness and, to that extent, his "participation" and "assistance" of newly employed counsel would not be improper.

On the other hand, if the lawyer is to be a witness on behalf of the doctor, he should not be counsel or co-counsel in the case and should confine his participation to that of witness.

Since it is ethically improper, except in exceptional circumstances, for an attorney to represent a party in a case when he knows that he or a lawyer in his firm, will be called to testify as a material witness in the case (Code of Professional Responsibility, DR 5_101(B); and Formal Opinions 50 and 185, Committee on Professional Ethics, American Bar Association), the Committee considers that it would be no less improper for co-counsel to so testify on behalf of a client even though the lawyer conducting the trial is not in the same firm.

Our opinion is not intended to preclude the inquiring attorney from cooperating with the new counsel by conferring with him or making available to him any information which may properly be helpful to the client's cause.