Opinion #56. Attorney's Use of Own Affidavit in Support of Motion

Issued by the Professional Ethics Commission

Date Issued: June 4, 1985

Facts

Attorney A is employed as “in‑house” counsel to a lending institution. He is also a corporate officer of the institution. In the course of his employment A has custody from time to time of commercial loan documentation generated in the ordinary course of business. Other officers are customarily involved in the preparation and execution of documents during the course of commercial transactions, and are usually available to serve as witnesses in connection with litigation, A has commenced a judicial real estate foreclosure action on behalf of his employer. Service is made upon all parties. A intends to file certain affidavits in connection with the foreclosure.

Questions Propounded

Where Attorney A files his own affidavits as to facts relating to pending action, do Bar Rules 3.4(j) and/or 3.5(b)(1) prohibit A from appearing as counsel?

Opinion

It is our opinion that the mere filing of an affidavit does not per see violate the lawyer/witness disqualification rules of Bar Rules 3.4(j) or 3.5(b)(1). An affidavit is a statement under oath to the effect that the contents of the affidavit are true.[1] An affidavit is customarily utilized to fill an evidentiary vacuum relating to a necessary but uncontested issue.

The purpose of the lawyer‑witness disqualification is that it is considered unseemly for an attorney to be arguing his own credibility as a witness. The dual role of lawyer and witness may also affect the independent judgment of a lawyer. Our conclusion is that the application of the lawyer‑witness disqualification to the lawyer as affiant is not supported by the same considerations.

Nevertheless, the attorney filing such an affidavit may lead to his testifying as a witness, should the subject matter of the affidavit be controverted, thus triggering the disqualification provisions of Rule 3.4(j) and 3.5(b)(1). It should therefore be obvious that the choice of the lawyer as affiant may be inappropriate where other equally competent affiants are available.


Footnote

[1] Jagoe v. Blocksum, 440 A.2d 1022 (Me. 1982).


Enduring Ethics Opinion