Opinion #23. Lawyer Witnessing Violation of Clients' Rights
Issued by the Professional Ethics Commission
Date Issued: August 25, 1981
In the process of executing a search warrant at the law office of Attorney A, police officers examined the individual files of Attorney A’s clients. Attorney A was a witness to this conduct. Attorney A’s clients charged with criminal offenses wish to pursue Motions to Dismiss based upon the violations of their constitutional rights to effective assistance of counsel, the attorney‑client privilege and confidential relationship, work product privilege, and the right to privacy.
May Attorney A, without withdrawing as counsel, testify at a hearing on Motions to Dismiss the criminal charges against his clients based on the actions of the police officers during the search?
What are Attorney A’s obligations to these clients if the Motion to Dismiss is denied and each client wishes Attorney A to represent him at the trial on the merits?
Do the answers to the previous questions change if Attorney A believes that the conduct of the police officers provides the basis for a civil action by Attorney A against the officers?
I. May Attorney A, without Withdrawing as Counsel, Testify at a Hearing on the Motions to Dismiss?
Maine Bar Rule 3.5(b)(1) provides the standard for consideration in this situation. It states:
If a lawyer knows, or should know, that he or a lawyer in his firm is likely or ought to be called as a witness in litigation concerning the subject matter of his employment, he and his firm shall withdraw from representation at the trial unless the Court otherwise orders. This Rule does not apply to situations in which the lawyer would not be precluded from accepting employment under Rule 3.4(j).
Rule 3.4(j) states:
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 distinct value of the lawyer or his firm in the particular case would make denial a substantial hardship on the client.
It is clear from the facts presented that Attorney A’s testimony will not “relate solely to uncontested matters or to legal services furnished by the lawyer . . .”; nor is there any basis to conclude that “the distinct value of the lawyer or his firm” in this particular case would result in substantial hardship to the client if Attorney A were required to withdraw. Accordingly, it is the Commission’s opinion, based on the facts presented, that Attorney A may not testify at the hearing without first withdrawing as counsel.
As indicated in our Opinion No. 79‑6, “(t)he spectacle of an attorney moving from the counsel table to the witness stand and back again and perhaps thereafter arguing for his own credibility is clearly to be avoided if at all possible . . .” The rationale for this view is well stated in EC 5‑9 of the ABA Code of Professional Responsibility:
If a lawyer is both counsel and witness, he becomes more easily impeachable for interest and thus may be a less effective witness. Conversely, 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.
Another important point is made in EC 5‑10, which states:
Problems incident to lawyer‑witness relationships 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 consideration . . . [and] where the question arises doubt should be resolved in favor of a lawyer testifying and against his becoming or continuing as an advocate.
In the case presented, it seems clear that Attorney A should testify as an eyewitness to the police search. His testimony regarding what was searched, how the search was conducted, how the police conducted themselves, etc., would seem to be critical to the decision on granting the Motion to Dismiss. It might, in fact, be the sole basis for granting such a Motion. And if Attorney A does testify at the hearing, then he must first withdraw from representing the clients in question.
II. What Are Attorney A’s Obligations to His Clients If the Motion to Dismiss Is Denied and Each Client Wishes Attorney A to Represent Him at Trial on the Merits?
Attorney A has an ethical obligation to proceed in a fashion that will serve the best interests of his clients, consistent with the mandates of the Bar Rules. If it is likely that Attorney A will be called or ought to be called as a witness at trial, then clearly Attorney A cannot also represent these clients during the trial, for the reasons previously stated.
Even if Attorney A will not and ought not appear as a witness at trial he must still comply with Rule 3.4(a) before accepting such employment. That Rule provides that:
Before accepting any professional employment, a lawyer must disclose to the prospective client . . . his interest if any in the subject matter of the employment; all the circumstances regarding his relationship to the parties; and any interest or connection with the matter at hand that could influence the client in his selection of a lawyer. (Emphasis supplied)
The Reporter’s Notes indicate that Rule 3.4(a) seeks to mandate complete disclosure. The Rule is designed to insure that a client in retaining an attorney is completely informed about the existence of any fact which might influence the judgment or effectiveness of the attorney. The Commission does not have sufficient information on the facts of this particular case to determine whether disclosure is mandated here. Clearly, however, such factors as (1) incriminating evidence having been discovered in Attorney A’s office, or (2) Attorney A’s interest in protecting his own rights or reputation possibly being or becoming at variance with his client’s interests, would if present here, have to be disclosed under Rule 3.4(a).
Further, if these or similar facts exist to the extent that Attorney A’s independent professional judgment on behalf of his client will be, or reasonably may be, adversely affected, then the requirements of Rule 3.4(f) would also have to be complied with.
III. Do the Answers to the Previous Questions Change If Attorney A Believes That the Conduct of the Officers Provides the Basis for a Civil Action Taken By Attorney A Against the Officers?
In our view, the fact that Attorney A believes that the officers’ conduct provides the basis for a civil action by him personally simply adds another important reason why Attorney A should not represent the clients in question at either the hearing or the trial. The possibility of financial gain to Attorney A through a civil lawsuit would further strain Attorney A’s credibility in the eyes of the fact‑finder, to a point which would most certainly be a disservice both to his clients and to the cause of justice.