Opinion #78. Withdrawal of Mortgagee's Attorney Who Will Be Called as Witness Regarding Fees Charged in Foreclosure Action

Issued by the Professional Ethics Commission

Date Issued: April 1, 1987

The Ethics Commission has been asked whether an attorney representing the mortgagee in a civil action to foreclose a mortgage must withdraw (unless the Court otherwise orders) if counsel for the mortgagor has indicated the likelihood that the inquiring attorney will be called as a witness at the trial for the purpose of being examined on the question of the attorney’s fee, if any, to be included in any judgment of foreclosure. The inquiring attorney has received a notice to take his deposition, which indicates that the topics of the deposition are to be limited to non‑privileged matters concerning the attorney’s fees recoverable by the plaintiffs under the mortgage.

Opinion

Rule 3.5(b) of the Code of Professional Responsibility requires the withdrawal of a lawyer who knows or should know that he is likely to be called as a witness in litigation concerning the subject matter of his employment. The Rule goes on to provide, however, that it 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)(1) makes clear that withdrawal will not be required “where the predictable testimony will relate solely to . . . legal services furnished by the lawyer.” Subsection 2 of subparagraph (j) of Rule 3.4 provides that withdrawal of the entire firm is not required in any event; a partner of the witness attorney may take over the trial, regardless what topics will be covered by the witness‑attorney’s testimony.

Insofar as such matters are predictable at all, it seems apparent that the testimony contemplated from the inquiring attorney is testimony relating solely to legal services he or his firm has furnished or will furnish. Accordingly, his withdrawal would appear not to be required. Even if the testimony strays beyond the issue of legal services, a partner of the lawyer would be free to take over the trial, and in any case withdrawal would not be required if the Court otherwise ordered. Since attorney’s fees are always a potential issue in a foreclosure, the plaintiff’s attorney will always be a possible witness, and a rule mandating withdrawal in all cases would therefore be impractical to say the least.


Enduring Ethics Opinion