Opinion #162. Lawyer as Witness in Real Property Case Where Lawyer Previously Certified Title

Issued by the Professional Ethics Commission

Date Issued: October 14, 1998

Question

The inquiring attorney represents a client in a trespass case in which one issue to be decided will be a determination of title. Opposing counsel has advised the inquiring attorney that the inquiring attorney had previously certified title to the disputed property in accordance with the standards of the Maine State Bar Association. While the inquiring attorney believes his previous certification is “probably” not relevant, he has been advised he will be deposed by opposing counsel on the matter.

The question is whether under the circumstances the Inquiring attorney can continue to represent his client, and whether at the trial even if he is to be called as a witness another member of his firm may continue to represent his client.

Opinion

Rule 3.4(g)(1)(i) states that “A lawyer shall not commence representation in contemplated or pending litigation if the lawyer knows, or should know, that the lawyer is likely or ought to be called as a witness.” Rule 3.4(g)(1)(ii) creates an exception to the above rule by stating that, subject to exceptions that we are assuming for the purposes of this discussion are not relevant to this inquiry, “[a] lawyer may commence representation in contemplated or pending litigation if another lawyer in the lawyer’s firm is likely or ought to be called as a witness.”

Were Rule 3.4(g)(1) the only applicable rule, the attorney’s firm, would not be prevented from continuing the representation. The problem arises because Rule 3.5(b)(1) seems to answer the inquiry differently: “If a lawyer knows, or should know, that the lawyer or a lawyer in the lawyer’s firm is likely or ought to be called as a witness in litigation concerning the subject matter of the lawyer’s employment, the lawyer and the lawyer’s 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).”

The reference in the last sentence of Rule 3.5(b)(1) to Rule 3.4(j) is problematical since Rule 3.4(j) does not exist in the present Rules.[1] Until the 1993 amendments, the text of Rule 3.4(g)(1) was Rule 3.4(j). The 1985 amendment to old Rule 3.4(j) added the provision now designated as Rule 3.4(g)(1)(ii). When present Rule 3.4 was revised In 1993, no substantive changes were made to Rule 3.4(j) other than re-designating it as Rule 3.4(g)(1). The Commission therefore concludes that Rule 3.5(b)(1) intended to refer to the rule now designated as Rule 3.4(g)(1)(ii).

Thus the Commission concludes that Rule 3.4(g)(1) (ii) answers the inquiry. As long as another lawyer represents the client the firm may continue its representation. If the Inquiring lawyer wishes to personally continue representation of the client, he may do so until such time he knows, or should know, that he is likely to be called as a witness. The Commission is in no position to determine at what point in the facts will develop such that the “know or should know” threshold is crossed. If in doubt and the inquiring attorney Is unwilling to transfer representation to another member of his firm, he may have to bring the inquiry to court in an appropriate pre-trial motion.

The Commission further adds that even if the attorney or his firm may continue representation under the cited Rules, a further analysis must be conducted under Rule 3.4(f) and 3.4(b). After all, the prospect of the attorney’s prior work being presented to a fact finder to support a position contrary to the interest of the client raises considerable concern about desirability of continued representation under principles set forth in these two Rules.


Footnote

[1] The West Publishing pamphlet of Maine Rules of Court, 1997, cite the reference as a rule 3.4(g)(1)(i), but there is no authority for that modification, and the Rule as officially promulgated is as stated in this opinion.


Enduring Ethics Opinion