Opinion #108. Limitations on Witness-Lawyer

Issued by the Professional Ethics Commission

Date Issued: September 20, 1990

Question

A lawyer has been hired by an employer to act as their chief negotiator in pending labor negotiations. Prior to the lawyer’s engagement the employer had been representing itself in sessions, but little progress had been made. After lengthy discussions with her client, the lawyer presented to the employee representative a set of proposals, many of which involved matters that had not been discussed in the previous bargaining sessions with the employee representative. The subsequent sessions produced no agreement. In fact the employee representative filed a Prohibited Practice Complaint with the Maine Labor Relations Board alleging, among other matters, 1) failure to bargain in good faith due to the addition of new issues presented by the lawyer when she entered the negotiations, and 2) discrimination against Union employees. The lawyer was named as a respondent as well as her client and its individual agents and officers.

The question is whether the lawyer’s firm can still continue to represent the client in the Prohibited Practice Complaint.

Opinion

Three rules are implicated in this matter. Rule 3.5(b)(1) 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 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).
Rule 3.4(f) states:
Except with the informed written consent of the client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of the client will be, or reasonably may be, affected by any interest of the lawyer.

Under the question as presented, this is really not an issue because the Commission is asked to assume that full disclosure has been made to the client, and the client has unequivocally indicated in writing its desire to have the lawyer and her firm continue to represent it.[1]

Thus it is the third rule, Rule 3.4(j), which is the primary focus of this inquiry. In relevant part it reads:

(1) A lawyer shall not accept employment in contemplated or pending litigation if he knows, or should know, that he is likely or ought to be called as a witness. . . .
(2) A lawyer may accept employment in contemplated or pending litigation if another lawyer in his firm is likely or ought to be called as a witness unless such employment is precluded by [exceptions not relevant to this question].

It is stated in the facts presented that the lawyer intends to have a member of her firm actually conduct the litigation before the Board although she expects to be substantially involved in the preparation of the case.

While the lawyer would clearly be disqualified from continuing to represent the client under subparagraph 3.4(j)(1) once she is made a party and is likely to become a witness, it is equally clear that subparagraph (2) permits her associates to represent the client. The only question is whether the fact that the lawyer continues to participate in the case means that subparagraph (2) does not apply in this case. The Commission concludes that the contemplated arrangement, as presented, would not violate Rule 3.4(j) as long as the non‑witness‑lawyer, and not the witness‑lawyer, exercises control of the litigation before the Board.

The purpose of Rule 3.4(j) is to (1) preclude an unseemly situation in which the lawyer is at once testifying and arguing his own credibility, and (2) the danger of a lawyer being unable to exercise independent professional judgment on behalf of a client. See Opinion 56. The first concern is resolved by requiring that someone other than the lawyer‑witness conduct the litigation. The Bar Rules resolve the second concern by a per se exclusion of the lawyer‑witness from serving the dual role, but permitting the client to determine if he wishes representation by the witness‑lawyer’s associate after full disclosure of the possible conflicts that exist. By requiring the non‑witness‑lawyer to control the litigation, these principles are not compromised. The witness‑lawyer is not prevented from participating in the case, as would be expected and indeed welcomed by the client; but appropriate protection is achieved as long as it is understood and accepted by all parties, including the client, that the non‑witness‑lawyer and the client are in control of the litigation.


Footnote

[1] The Commission also assumes that the standards of Rule 3.4(c) and (d) have been satisfied.


Enduring Ethics Opinion