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OBA Ethics Counsel

Ethics Opinion No. 280

Adopted June 22, 1974.

INQUIRY

(1) If a client was previously represented in connection with divorce litigation by a lawyer associated with a certain law firm, but such lawyer's association with such firm has since terminated, may such firm, the present members and associates of which received no confidences or secrets of such client, ethically represent a party adverse to such client in litigation involving matters related to those involved in the divorce litigation?

(2) Under what circumstances may a lawyer who performed legal services in connection with the preparation of an estate plan and related documents accept employment in contemplated or pending litigation involving the validity of such documents and arrangements, when it is likely that he or a lawyer in his firm may be called as a witness? (DR 5_101(B) and DR 5_102)

Introduction

Both of the questions set out above arise from rather complex litigation presently pending in the courts of this state. In fact, a judicial ruling has already been made on one of the questions involved. The Committee must therefore emphasize that its opinion is in no way intended to review or question any judicial determination which has been made, or to prejudge any rulings which might hereafter be made on any questions which are presented to the courts in connection with such litigation. The Committee will, however, express its opinion on the ethical matters arising out of what it understands to be the undisputed facts involved. The lawyers affected, and presumably the courts, will then give what weight they deem appropriate to the Committee's conclusions.

INQUIRY NO. 1

Facts

Mrs. A originally retained a law firm not presently involved in the matters in question to represent her in connection with her divorce from her husband, B. Sometime after the decree was entered, she retained lawyer X, who had formerly been associated with the original firm, to represent her in certain post-divorce matters, apparently related to B's compliance with property settlement arrangements. Lawyer X then became associated with law firm Y and Z, and continued representing Mrs. A. During this period, B remarried. During X's association with Y and Z, Mrs. A discussed matters involving her former husband's estate arrangements and their possible effect on his ability to comply with the property settlement under the divorce. For the purposes hereof, it is assumed that none of the matters communicated to X by Mrs. A, nor any of the facts of which he became aware as a result of his representation of Mrs. A, were communicated by X to any members or other associates of the Y and Z firm.

X is now no longer associated with Y and Z firm, and is no longer employed by Mrs. A. B is deceased, and the surviving second wife of B and his brother are the executors of his estate.

Mrs. A has now retained another attorney, C, and has instituted litigation both on her behalf and on behalf of minor children of herself and B against the executors of B, alleging, inter alia, that certain inter vivos estate arrangements made by B were fraudulent, in that they operated to defraud her and her children of the benefits secured for them through the property settlement in connection with the divorce. The executors of B have retained Y, a member of the Y and Z firm, to assist in the defense of the actions brought against them by Mrs. A. Mrs. A's present attorney, C, is objecting that it is unethical for the firm of Y and Z to undertake representation adverse to Mrs. A, since attorney X, who was previously associated with the Y and Z firm, had represented her in connection with matters related to her divorce action against B during the time of his association with Y and Z.

Y and Z respond first, that X had been neither a member nor an associate of their firm, that he was paid no salary, and that their relationship had been merely an office sharing arrangement. They had received no portion of the fees paid by Mrs. A during this period, and finally, they had received no secrets, confidences or information of any kind from Mrs. A, either directly, or indirectly by Mr. X conveying it to them.

It is conceded that during the period of X's association with Y and Z, he used Y and Z's stationery, his business cards showed the firm name of Y and Z, he used Y and Z's telephone number, invoices for his services were submitted on Y and Z forms, and he made court appearances in certain cases on behalf of the Y and Z firm in litigation which was concededly theirs. He also filed pleadings in Mrs. A's divorce proceeding using the Y and Z firm name, and corresponded with her on their stationery.

Mrs. A also contends that it was X's association with the Y and Z firm which had caused her to keep him on the case, and that X had told her that he was talking to the members of Y and Z about her case.

OPINION

(Inquiry No. 1)

The answer to Inquiry No. 1 is in the negative, for the reasons set out below.

One preliminary matter must be disposed of before the basic ethical considerations are reached. Regardless of the technical legal status of X's association with Y and Z, the facts outlined above clearly cause him to be treated as an associate of the firm. For the purpose of determining conflict of interest questions, even a true office-sharing arrangement involving separate letterheads, billings, shingles, et cetera, nevertheless causes lawyers to be treated as though they were partners. This Committee stated in Oklahoma Bar Association (OBA) Opinion No. 257, 40 Okla. Bar J. 1252, 1253 (1969):

"At the outset it should be noted that what may be unethical for one member of a law firm to do in a particular situation does not render such act ethical simply by permitting a partner or associate of the firm to do. This likewise extends to those lawyers who may not be partners according to a legal definition of a partnership but have close proximity or association (such as office and overhead sharing arrangements) with each other so as to imply to the public that a partnership exists."

See OBA Opinion No. 88 (1935). To the same effect, American Bar Association (ABA) Informal Opinion (Inf.Op.) 995 (ABA Opinions 1968 Supp., at 35); see ABA Formal Opinion No. 104; Drinker, Legal Ethics 106 (1953).

Therefore, Mrs. A should be considered to have been a client of the Y and Z firm during the period that X was associated with them.

The next question to be resolved is the more difficult one of whether, assuming that the present members and associates of the Y and Z firm in fact obtained no information whatsoever concerning Mrs. A's claims against her former husband, B, during or by reason of her representation by X while he was with Y and Z, Y and Z should undertake representation adverse to her.

Canon 4 of the Code of Professional Responsibility ("the Code") provides, "A lawyer shall preserve the confidences and secrets of a client." However, for the purposes of this opinion, we are assuming that there is no possibility of the use by Y and Z of confidences and secrets imparted to their former associate X by Mrs. A.

Ethical Consideration ("EC") 5_14 is as follows:

"Maintaining the independence of professional judgment required of a lawyer precludes his acceptance or continuation of employment that will adversely affect his judgment on behalf of or dilute his loyalty to a client. This problem arises whenever a lawyer is asked to represent two or more clients who may have differing interests, whether such interests be conflicting, inconsistent, diverse, or otherwise discordant."

"Differing interests" is defined by the Code (Definitions Section) as including "every interest that will adversely affect either the judgment or the loyalty of a lawyer to a client, whether it be conflicting, inconsistent, diverse or other interest."

Surprisingly, under the new Code, unlike old Canon 6 ("The obligation to represent the client with undivided fidelity and not to divulge his secrets or confidences forbids also the subsequent acceptance of retainers or employment from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed."), there is no specific provision governing the acceptance by a lawyer of subsequent employment by a new client against a former client. ABA Inf.Op.No.1233 (8 24 72). Nevertheless, the same ethical considerations are applicable as under former Canon 6. Ibid (by implication). And in such circumstances present Canon 9, "A lawyer should avoid even the appearance of professional impropriety," is peculiarly applicable.

In OBA Opinion No. 192 (1957), this Committee held that where an attorney formerly represented an administratrix in connection with the administration of an estate and was discharged by her for objecting to her unauthorized disposal of estate property, he could not subsequently accept employment by the heirs. It was so held notwithstanding the fact that no confidences had been reposed in him by the administratrix. The Committee said:

"It is the opinion of the committee that the lawyer may not with propriety represent an heir or any other person in a proceeding against the administratrix. Even though the administratrix reposed no matters of a confidential nature in said attorney, she was certainly in a position so to do, and the attorney was also in a position where he could well have acquired information which could be used to the detriment of the administratrix in any subsequent proceeding."

In other cases the Committee has held that an attorney who represented taxpayers in an unsuccessful suit to resist annexation of a school district may not thereafter represent the resulting school district in a new proceeding seeking to withdraw the annexed district (Opinion No. 113 (1936)); that an attorney employed by a corporation in two lawsuits may accept subsequent employment in litigation against that corporation only if there were no facts involved in the previous litigation which may, even remotely, affect the proposed lawsuit (Opinion No. 91 (1935); that an attorney who drew a will may not represent a person seeking to take against the provisions of the will (Opinion No. 73 (1934)); and that an attorney representing a party in an action may not accept employment in a subsequent action collaterally arising out of the first suit (Opinion No. 56 (1933)).

In a significant decision the Committee held that where an individual came to a lawyer's partner to discuss employing him to represent her in bringing an action but decided not to retain him, the lawyer could later accept employment to defend against such action only if his partner had not discussed the merits of the case, advised in regard thereto or acquired any factual information which might or should be used in the trial of the case (Opinion No. 184 (1956)). The Committee said:

"If there is doubt in the mind of the lawyer or lawyers involved, the benefit of the doubt should be resolved in favor of the litigant, and the employment should not be accepted. A lawyer's duty requires him at all times to uphold the honor and maintain the dignity of the profession. Personal sacrifice of financial reward in cases such as this adds to professional honor and dignity and elevates the profession in public esteem. It marks the clear distinction between a trade or business and a profession.

Where a lawyer had represented a client in a divorce action, he could not accept representation of another client in defense of an alienation of affections action brought by the original client (Opinion No. 134 (1937)) After stating that if information concerning the proposed litigation had been derived from the previous representation, it was obvious that such subsequent representation would be improper, the Committee went on to say:

"In all events, it appears that 'A' is involved in the situation to such an extent that his defense of the alienation suit would not be seemly. Paraphrasing somewhat the language of advisory opinion No. 73 (Vol. 1, Adv.Op. p. 137), it is the duty of a member of the bar not only to avoid all impropriety, but also to avoid the appearance of impropriety and (Rule 31) to strive, at all times, to uphold the honor and to maintain the dignity of the profession. Generally speaking, a member of the bar should refrain from creating a condition, regardless of express prohibition, which might tend to bring reproach upon the profession. For obvious reasons the acceptance of employment from Mrs. X under the conditions presented would so tend. Confidence with reference to certain phases, if not as to all, of the situation had been reposed by Mrs. X in 'A'. As stated in opinion No. 83 of the Committee on Professional Ethics and Grievances of the American Bar Association, personal sacrifice of financial reward in such a case adds to professional honor and dignity and elevates the profession in public esteem: it makes clear the distinction between a trade or business and a profession."

Where a firm under a retainer from a client has represented such client in a claim against another individual, after dissolution of a firm a former member thereof may not represent the other individual in resisting the claim, or in bankruptcy. Opinion No. 54 (1933).

The rule against conflicting subsequent representation even extends to a former insurance adjuster who worked on a case on behalf of his employer as a layman and thereafter became a lawyer. Opinion No. 154 (1951).

In In re Jeter, 163 Okla. 27, 20 P.2d 886 (1933), the Oklahoma Supreme Court disciplined a lawyer who represented a client in connection with litigation involving certain controversies, and then subsequently represented such client's adversary in other litigation arising out of the same controversies. This case was cited with approval in Northeastern Oklahoma Community Dev. Corp. v. Adams, 510 P.2d 939, 942 (1973), where mandamus was granted requiring the trial court to disqualify an attorney who was undertaking to represent a plaintiff in pending litigation, after having filed a written appearance to extend time to answer on behalf of the defendant in the same litigation. The court said (510 P.2d at 942):

"Lyons contends though that he did not receive any confidential communications which would be detrimental to N.O.C.D.C., and in those instances a lawyer should be allowed to continue his employment. In our opinion, however, this principle is fraught with too many dangers and suspicions. On the contrary, we approve of the pronouncement made by the Kansas Supreme Court in the case of State v. Leigh, 178 Kan. 549, 289 P.2d 774, 777 (1955), where they said:

"'It is the honor of the legal profession that its fidelity to its clients can be depended upon, that a person may safely go to a lawyer and counsel with him upon personal and confidential matters with the absolute assurance that the lawyer's tongue is tied from ever divulging it, and a strict enforcement of this rule requires that an attorney, on terminating his employment, cannot thereafter act as counsel against his client in the same general matter, even though, while acting for his former client, he acquired no knowledge which could operate to the client's disadvantage in the subsequent adverse employment. ...' (Emphasis ours.)

"The rule enunciated in State v. Leigh, supra, is a rigid one, but it is designed, not only to prevent the dishonest practitioner from fraudulent conduct, but to preclude the honest practitioner from placing himself in a position where he may be required to choose between two conflicting duties."

The question of conflict of interest arising out of subsequent representation contrary to a previous client is discussed at some length in ABA Inf.Op.No.1233(8 24 72). There it is said:

"'Representation of one whose interests diverge from those of a former client is generally recognized to be improper.' ... One reason for this view is that confidences or secrets of a former client might be used against him or be revealed to the new client. You state that no privileged information will be involved; however, the disqualification of a lawyer as a procedural matter does not necessarily turn upon whether confidences or secrets will in fact be abused. One recognized test as to whether a lawyer will be held to be disqualified is whether the subject matter of the second representation is so closely connected with the subject matter of the earlier representation that confidences might be involved?

..............

"The third aspect of your questions relate to the purely ethical question. Even if it is procedurally permissible and not in violation of a Disciplinary Rule for Legal Services to accept subsequent employment against the Tribe, how should Legal Services go about making its decision whether to accept such subsequent employment? General guidance is given by Canon 9, which says, 'A lawyer should avoid the appearance of professional impropriety.' (There is, of course, no Disciplinary Rule making that course mandatory.) To some observers, acceptance of later employment against a former client may give the appearance of impropriety, even if a wholly unrelated matter." (citations omitted)

In ABA Informal Opinion No. 885, there was an extensive discussion of the applicable considerations and authorities. The following are excerpts from that opinion:

"It is only when there is no conflict of interest that Canon 6 does not apply, as where the two matters are wholly unrelaed [sic]. Formal Opinions 71, 72 and 262.

"Disclosure of confidential communications is not the sole test in considering the propriety of acceptance of litigation against a former client. Despite the fact that the other or former client acquiesced, and there were apparently no confidences, the possibility that other matters might develop has been held to be sufficient to require the attorney to decline the employment. Drinker (Legal Ethics) p. 109, citing opinions of N.Y. County and City Bars, and particularly N.Y. City Bar Opinion B_136.

"See Also N.Y. County Bar Opinion 202, which Drinker, p. 115, quotes as follows:

"'The rendition of professional services by any attorney to one party to a litigation, which thus establishes necessarily a relation of trust and confidence, precludes the acceptance of employment by such attorney in any subsequent phase of the same litigation from the adverse party. A client is encouraged to make full disclosure of all facts to his attorney, and he should be justified in feeling that his attorney will never be found helping the other side of the litigation. The matter is not to be determined by such facts as that the original services were rendered on the employment of another lawyer, or that the services may have had no particular bearing upon the phases of the litigation contemplated to be conducted on behalf of the new employer, or that it is probable that no information was acquired in the first employment that might prove useful in the subsequent employment. Irrespective of any actual detriment, the first client might naturally feel that he had in some way been wronged, when confronted by a final decree obtained by a lawyer employed in his behalf in an earlier part of the same litigation. To maintain public confidence in the Bar, it is necessary not only to avoid actual wrong doing, but an appearance of wrong doing.'

"The thrust of the foregoing authorities is, a lawyer should not accept litigation against a former client, under any circumstances if such would result in conflict of interests or disclosure of confidences of the former client.

"Moreover, the lawyer should avoid representation of a party in a suit against a former client, where there may be the appearance of a conflict of interest or a possible violation of confidence, even though this may not be true in fact."

To the same effect, ABA Inf.Ops. 891 and 1125 (9 9 69), in which latter opinion it was held that after a former client had consented to subsequent adverse representation, that consent could nevertheless effectively be withdrawn.

In Drinker, Legal Ethics (1953), the same conclusion is reached that the controlling test is not whether actual knowledge which might be used against the former client has been obtained by reason of the previous representation, but whether any matter is involved in the new litigation which is related to that of the previous representation. Id. at 105, 107, 109, 115. See also, Weddington, A Fresh Approach to Preserving Independent Judgment, 11 Ariz.L.Rev. 31, 51_52 (1969).

On the basis of the assumed facts in the present inquiry (i. e. that issues involved in the instant litigation were also involved in the post-divorce matters handled by attorney X), the firm of Y and Z should not undertake representation of B's executors.

It should be emphasized in connection with this determination that it carries no implication whatsoever of any wrongdoing or conduct which would subject Y, or the firm of Y and Z, to disciplinary action. In this present day when large law firms are increasingly common, and at the same time there is considerable mobility of lawyers from one firm or association to another, numerous cases will arise where the present members and associates of a law firm not only do not possess any secrets or confidences of a particular former client of the firm, but are not even aware that the person in question had been a client of the firm. In a substantive sense, such a person may not really have been a client of the firm as such, but only of a particular individual who had been associated with the firm. Nevertheless, in order to avoid any question of the propriety of the lawyers' conduct in the mind of either the client involved, or the public at large, it is ethically desirable for a firm to decline subsequent representation adverse to such a client.

It is also incumbent upon the lawyer presently representing the client to bring the possible existence of a conflict to the attention of the lawyer or firm involved at the earliest possible time, in order to avoid unjustified embarrassment to such lawyer or firm, as well as possible financial loss and prejudice to the legal rights of the other litigant. If this is not done, the present lawyer for the client may be considered to be guilty of unprofessional conduct. See EC 7_1, EC 7_37, EC 7_38, and DR 7_101(a)(1).

INQUIRY NO. 2

Facts

For a number of years law firm G and H, and prior thereto G alone, represented B in tax and estate planning matters. While Mrs. A was married to B, certain tax matters were handled by G on behalf of Mrs. A. As stated earlier, Mrs. A is now contending in pending litigation that certain inter vivos estate planning arrangements which were made by B prior to his death operate to defraud her and her children of the benefits of property settlement arrangements made in connection with the earlier divorce proceedings. Mrs. A, through her present counsel, C, is objecting to representation of the executors of B by G and H, not on the ground of their previous representation of Mrs. A during her marriage to B (it apparently being presently conceded that any representation of her involved entirely unrelated issues), but on the ground that G and H will probably be called as witnesses, and their appearance as counsel is consequently forbidden by DR 5_101(B) and 5_102. G and H contend that because of their unique familiarity with both B's estate arrangements and the facts and circumstances surrounding their creation, their continued representation falls within the exception contained in DR 5_101(B)(4).

OPINION

(Inquiry No. 2)

DR 5_101(B) provides as follows:

"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 the 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."

DR 5_102 provides as follows:

"Withdrawal as Counsel When the Lawyer Becomes a Witness.

(A) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in DR 5_101 (B)(1) through (4).

(B) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm may be called as a witness other than on behalf of his client, he may continue the representation until it is apparent that his testimony is or may be prejudicial to his client."

Ethical Considerations ("EC") 5_9 and 5_10 are 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."

In Opinion No. 114 (1936), this Committee held that a lawyer who was a witness to a contested will could not both testify and conduct the probate in opposition to the contest. The opinion cited what was old Canon 19, providing:

"When a lawyer is a witness for his client, except as to merely formal matters, such as the attestation or custody of an instrument and the like, he should leave the trial of the case to other counsel. Except when essential to the ends of justice, a lawyer should avoid testifying in court in behalf of his client."

However, in ABA Formal Opinion No. 220 (1941), which was written by Drinker and adopted (5_2), by the Committee, an exception to this apparently blanket prohibition was delineated, for circumstances, similar to the instant case. The committee's syllabus stated the holding as follows:

"It is not necessarily unethical for an attorney to represent a client when his partner will be a material witness in the case. He may not do so if he will be required to attack the testimony of his partner. He should not accept employment if he then knows that his partner will necessarily be a witness as to matters not relating to his professional duties. However, where the attorney's long and inimate [sic] familiarity with the matter in litigation makes his withdrawal prejudicial to the client's case, or where his partner's testimony relates to matters occurring in the course of his professional duties, he need not necessarily withdraw."

The body of the opinion contains the following discussion:

"With the decisions in Opinions 33 and 185, where the lawyer would have been required to attack his own testimony or that of his partner, we are still in entire accord. To accept or continue such employment would necessarily place the lawyer in the inconsistent position condemned by Canon 6.

“We are also in accord with the position that where a lawyer will necessarily be a material witness as to matters not relating to his professional duties, he should not, in the first instance, accept employment in the case.

“The committee as at present constituted is of opinion, however, that a distinction may often properly be drawn in cases where a partner’s testimony relates to matters occurring in the course of his professional duties, and also in cases where the lawyer has long and intimate familiarity with the details of the matter in litigation, so that his withdrawal will necessarily deprive his client of knowledge and experience of peculiar and irreplaceable value.

“We therefore consider both unwarranted and unwise the broad generalizations of Opinions 33, 50, and 185 to the effect that a lawyer may never properly accept employment where his partner is likely to be a witness and that he must withdraw from a case when such probability develops.

“The question frequently arises in connection with cases like that here propounded. In such cases the lawyer for the decedent has prepared all the papers, knew the decedent, and knew exactly why he did what he did. His firm, however, naturally represents the decedent’s estate, which properly relies on them to sustain the gift. By reason of their knowledge of the decedent’s affairs they are peculiarly qualified to do so, and unless they can do so the estate will be deprived of their valuable services.

“In such cases there does not appear to be any impropriety in the lawyer who drew the papers and knew the testator testifying to the facts surrounding the execution of the deed of gift, and in his partner representing the estate to sustain it. The possibility of the witness moulding his testimony in order to secure a higher fee for his firm is more than balanced by the injustice to the client of depriving the latter either of a necessary witness or of a specially qualified lawyer. The possible interest of the witness would merely affect his credibility. While it is true that such a situation might require the lawyer for the estate to argue the veracity of his partner, this would be equally the case where the witness was his friend or his near relation. Actually, if the partner of the witness withdrew from the case and asked one of his colleagues at the bar to take his place, the latter would be not less assiduous in standing up for the witness’ reputation as would the latter’s partner.

“We do not construe the words ‘other counsel’ in Canon 19 as necessarily excluding a partner of the lawyer who must become a witness.

“In our opinion, therefore, it cannot properly be said in every case that a lawyer may not properly appear in a case where his partner could not; but that each case should depend on its own facts.

“Like many other problems arising in the course of professional employment, this involves questions of good taste as well as of ethics, its solution depending largely on the surrounding circumstances, in the light of which each case must be resolved, within the limits above outlined, by the lawyer, with of course, full disclosure to opposing counsel and to the tribunal.”

This is apparently the basis for the exception contained in DR 5-101(B) (4) of the new Code.

Significantly, in Payne v. Seay, 478 P.2d 889, 894 (1970), the Oklahoma Supreme Court, while citing OBA Opinion No. 114, held that there were extenuating circumstances in that case which made it permissible for the trial court to admit testimony of a lawyer who was also acting as counsel for one of the parties. In that case, associate counsel conducted substantially all of the trial itself.

The committee is of the opinion that the reasoning set out in ABA Opinion No. 220 above is a reasonable and well-founded view of the ethical considerations involved, and therefore adopts the same, overruling our Opinion No. 114 to the extent that it is inconsistent therewith. However, the committee cautions any lawyer relying on the exception that he bears a heavy burden of justification for his decision to serve as both witness and advocate, and in most circumstances doubts should be resolved in favor of the lawyer testifying and against his continuing as an advocate. (See EC 5-10).