CI-513
August 18, 1980
SYLLABUS
A lawyer may properly continue to represent a client where the lawyer's testimony is necessary relating to an aspect of the client's case but where the testimony pertains to an uncontested issue.
References: DR 5-101, DR 5-102C-103; CI-110, CI-146, CI-262, CI-319, CI-355, CI-448.
TEXT
Inquiry has been made as to whether it would be proper for a lawyer to continue representation of a client under circumstances where it may be necessary for the lawyer to testify on behalf of a client.
After the lawyer commenced an action on behalf of the client for personal injuries resulting from an automobile accident, the lawyer received a telephone call from the defendant stating that the defendant was not insured at the time of the accident. The lawyer then filed a claim under the uninsured motorist provision of the client's policy. In the lawyer's efforts to establish that no insurance was available at the time of the accident, the lawyer learned that the placement agency did not keep records of placements with other companies until after the accident, and therefore the identity of the placement insurer is not ascertainable.
Recent efforts to locate the tort feasor have been unsuccessful and, for that reason, to establish that no insurance was in effect at the time of the accident, it would probably be necessary for the lawyer to testify at the hearing. The inquirer also relates that it is highly unlikely that the carrier for the client will be able to produce any evidence that insurance was in effect.
The applicable provisions of the Code of Professional Conduct and Canons, are DR 5-101 and DR 5-102. The subject matter of any proposed testimony by you is not merely that of formality as exempted by DR 1-1(B)(2), but highly relevant to an issue to be decided at the hearing, namely, whether insurance was in effect at the date of the accident. Nevertheless, under the facts you have described, the situation properly falls within the purview of the exception stated in DR 5-101(B)(1), specifically an uncontested issue, and that it would be proper for you to testify without the necessity for withdrawal from representation.
In the event the matter became contested on the issue relating to the proposed testimony, withdrawal would be necessary, as not within the provisions of DR 5-101(B)(4). Clearly many attorneys are capable of representing your client in an action of this type. Your services are not of such a nature to constitute "distinctive value" as contemplated by the Coded so as to work a hardship on your client. See opinions CI-110, CI-146, CI-262, CI-319, CI-355, CI-448 and C-103.