Opinion #50. Representing Partner in Case in Which He Will Be Called as a Witness

Issued by the Professional Ethics Commission

Date Issued: May 10, 1984

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.


Footnote

[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).


Enduring Ethics Opinion