Bar Counsel Notes: Conflict of Interest/Lawyer as Witness

When, if ever, may an attorney remain as counsel in a case wherein the attorney may be required to testify as a witness?

There are unique facts which qualify as an exception to the lawyer as witness rule in Maine Bar Rule 3.4(g)(1)(i). On occasion, an attorney's testimony may be characterized as falling within the legal services she performed on her client's behalf; and/or the distinctive value of the attorney's representation would create a hardship to her client if the attorney were forced to withdraw. Of note, when an attorney intends to testify about the legal services she performed, she should have another "unconflicted" lawyer on hand to conduct the examination once the court allows such testimony on the limited issue of provisions of legal services. (See Maine Bar Rule 3.4(a)(1)(ii). Furthermore, while Bar Counsel believes such advice is accurate, attorneys should be prepared to explain to the courts the basis for their analysis should opposing counsel/adverse party raise a conflict issue. In any event, the Maine courts will ultimately decide whether an attorney has to withdraw due to a conflict.

*Disclaimer: The Informal Ethics Advisory Notes from Bar Counsel are intended as outreach by the office of Bar Counsel for the use and benefit of the Maine bar. These scenarios are drawn from actual telephone calls received by the attorneys in the office of Bar Counsel in the course of providing informal advice on the Code of Professional Responsibility, known as Bar Counsel's "Ethics Hotline." The particular advice in each case is limited with reference to the particular factual situation related by the inquiring attorney who must be inquiring about his or her own conduct or the conduct of a member of his or her firm. We do not provide any advice to one attorney about the conduct of another attorney unless they are members of the same law firm. In the telephone opinions, we usually explore and discuss additional factual variables. However, I have attempted to pare down these factual scenarios to make the email newsletter more readable and useful in a general sense. Obviously, that creates the risk that slight variations on the facts, to a learned reader, may give rise to a different analysis and conclusion.