Bar Counsel Notes: Conflict-when lawyer may be called as a witness/lawyer's own interest
Attorney A represented employer-client in a labor negotiation matter. Those negotiations were unsuccessful, and the employees' representative then filed a complaint with the Maine Labor Relations Board claiming that Attorney A had failed to bargain in good faith. Attorney A and her employer-client are both named as respondents in that action. May Attorney A's law firm continue to represent the employer-client in that new complaint before the MLRB?
Maine Bar Rule 3.4(g)(1)(ii) should be reviewed in any lawyer-witness situations such as the question presented. While an earlier version of this Bar Rule (then labeled as Bar Rule 3.4(j) generally prohibited an entire law firm from representing a client if any of the firm's attorneys was a likely witness on the merits, the current Bar Rule may allow the firm to remain as counsel.
Two inquiries must be made in such matters: 1). The particular facts of each case should be reviewed to confirm whether Attorney A may still be allowed to remain as the client's attorney, e.g. the distinctive value of that attorney in a particular case would make denial of her/his involvement a substantial hardship on the client; and 2). Assuming - as in the case presented - that such exceptions appear inapplicable, then although Attorney A is prohibited from representing the client, another attorney from her firm may remain as the client's attorney as long as such alternate representation is not itself precluded by a conflict of interest under M. Bar R. 3.4(b)(c)(d) (e) or (f).
Under that two-step analysis for the question presented, Attorney A is precluded from remaining on the matter before the MLRB. However, another attorney from her firm may do so as long as Attorney A is kept totally removed from any control of the litigation. She has become a witness, and must have no further voice in how the firm handles the case. See Advisory Opinion #108 (9/20/90).
*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.