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Opinion #50
Issued 5/10/1984
| Note:
Opinion #50 (May 10, 1984) is
superceded by current (2006) M. Bar.
R. 3.4(g)(1)(ii) amended February
15, 1985 [M. Bar R. 3.4(j) at time
of amendment)]. |
The Grievance Commission of the Board of Overseers
of the Bar
Facts
Attorney A is a party in a civil matter unrelated to
the performance of any legal services (e.g., a
defendant in a traffic offense, divorce proceeding
or contract dispute). He has requested Attorney B
who is a member of the same law firm to represent
him. Neither B nor any member of the law firm will
be a witness in the trial except, of course, A.
Question
Can B represent A?
Opinion
The Maine Bar Rules prohibit representation by B.
Rule 3.4(j) reads as follows:
A lawyer shall not accept employment in contemplated
or pending litigation if he knows, or should know,
that he or a lawyer in his firm is likely or ought
to be called as a witness. This rule does not apply
where the predictable testimony will relate solely
to uncontested matters or to legal services
furnished by the lawyer, or where the distinctive
value of the lawyer or his firm in the particular
case would make denial a substantial hardship on the
client.
A major purpose of the Rule, as pointed out in some
detail in ABA Formal Opinion 339, is to prevent a
situation in which a lawyer, or a lawyer in his
firm, is placed in “the unseemly position of arguing
his own credibility or that of a lawyer in his
firm.” In such a situation, it is argued, a client’s
case could be weakened where a supporting witness
may be subject to impeachment because of an
interest in the outcome of the trial. Furthermore,
it has been suggested that opposing counsel may be
handicapped in challenging the credibility of the
lawyer witness.
It may be argued that under the facts set forth
above no such risks are present. After all, the
lawyer‑witness as a party has an interest in the
outcome of the trial much the same as any non‑lawyer
party, and it may be difficult to detect
unseemliness where the lawyer is arguing the
credibility of his client under the above facts.
Indeed one might further argue that Rule 3.4(f)
would provide more appropriate guidance in
determining the wisdom of such representation under
these circumstances.
However, to answer the question in the affirmative
would be tantamount to amending the Rule which is
beyond the authority of this commission.[1]
No distinction is made between the lawyer‑witness
who is a party and one who is not a party. The Rule
permits only three exceptions: (a) where the
testimony relates to uncontested matters, (b) where
the testimony involves legal services furnished by
the lawyer, and (c) where the distinctive value of
the lawyer or his firm in a particular case would
make denial a substantial hardship on the client.
The facts as stated do not come within any one of
these exceptions.
Thus the Commission concludes that Rule 3.4(j)
prohibits employment of B by A without additional
circumstances which would permit representation
under one of the exceptions described therein.
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________________________________
[1]It
is perhaps of some interest to note that under the
new ABA Model Rules of Professional Conduct,
representation would probably be permitted under the
facts posed by this question (c.f. Rule 3.7).(Back)
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