CI-593

December 22, 1980

SYLLABUS

(1) Ordinarily, a lawyer should withdraw from employment as trial counsel when it becomes obvious the lawyer, or another lawyer within the firm, ought to be a witness in the case, unless the testimony will relate (1) solely to an uncontested matter; (2) a matter of formality when there is no reason to believe that substantial evidence will be offered in opposition; and (3) solely to the nature and value of legal services rendered by the lawyer or firm to the client.

(2) Withdrawal is not required if in the particular and exceptional circumstances of the case, it would work a substantial personal or financial hardship on the client because of the distinctive value of the lawyer or firm as counsel.

(3) In the exceptional circumstance, where a lawyer-advocate offers material testimony on behalf of a client in a contested case, the court and opposing counsel shall be advised that the lawyer-advocate, or a member of the lawyer's firm intends to testify and the nature of the testimony. Furthermore, the lawyer-advocate shall not expressly argue the credibility of his/her own testimony or that of a lawyer within the firm.

References: DR 5-101(B)(4) and DR 5-102(A).

TEXT

In your request for an Informal Ethics Committee Opinion you state that you represented a client in a contempt of court action. During the course of this representation you became involved in a series of events giving rise to a civil rights action, which you filed against your client's adversary, for procurement of an arrest without cause. Because of financial necessity, you undertook the civil rights action on a contingent fee basis. During the course of the civil rights representation it becomes obvious to you that your testimony will be important to support the client's course of action. You have advertised for substitute counsel in a local bar journal in a large city without response. You further contacted a lawyer referral service in search of substitute counsel. While the client is not totally destitute, therefore qualifying for legal aid, no experienced trial lawyer is willing to undertake the action on a contingent fee basis. The defendant's lawyer has asked that you disqualify yourself and you wish to know whether it is ethically permissible for you to continue to represent the client and also testify on the client's behalf in the civil rights case?

Both DR 5-102 (A) and DR 5-101(B) are relevant to your inquiry. DR 5-102(A) says:

"(A) if, after undertaking employment in contemplated or pending litigation, a lawyer learns, or it is obvious that he/she or a lawyer in his/her firm, ought to be called as a witness on behalf of his/her client, he/she shall withdraw from the conduct of the trial and his/her firm, if any, shall not continue representation in the trial, except that he/she may continue the representation and he/she or a lawyer in his/her firm may testify in the circumstances enumerated in DR 5-101(B)(1) through (4)."

DR 5-101(B) says:

"(B) A lawyer shall not accept employment in contemplated or pending litigation if he/she knows, or it is obvious, that he/she or a lawyer in his/her firm ought to be called as a witness, except that he/she may undertake the employment and he/she or a lawyer in his/her firm may testify:

(1) If the testimony will relate solely to an uncontested matter.

(2) If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony.

(3) If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or his/her firm to the client.

(4) As to any matter, if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his/her firm as counsel in the particular case."

DR 5-101(B)(1) through (3) tell us that it is not objectionable for a lawyer who is a potential witness to be an advocate if it is likely that he/she will be called as a witness because the testimony would be merely cumulative or will relate solely to an uncontested issue or the nature and value of legal services rendered in the case by the lawyer to the client. The balance of this opinion will focus on the provision of DR 5-101(B)(4) which would permit otherwise improper testimony in cases of "substantial hardship" on the client because of the "distinctive value of the lawyer or the firm."

In this connection ethical consideration 5-10 says, in part:

". . . In the exceptional situation where it will be manifestly unfair to the client for the lawyer to refuse employment or to withdraw when he will likely be a witness on a contested issue, he or she may serve as an advocate even though he or she may be a witness. In making such decision, he or she should determine the personal or financial sacrifice of the client that may result from his or her refusal of employment or withdrawal therefrom, the materiality of his or her testimony, and the effectiveness of his representation in view of his or her personal involvement. In weighing these factors, it should be clear that refusal or withdrawal would impose an unreasonable hardship upon the client before the lawyer accepts or continues the employment. Where the question arises, doubts should be resolved in favor of the lawyer testifying and against his or her becoming or continuing as an advocate." Emphasis added.

In attempting to clarify the intent of DR 5-101(B)(4), the American Bar Association in Formal Opinion 339 (January 31, 1975) offered the following examples of exceptional situations in which DR 5-101(B)(4) may be invoked:

"(W)here a complex suit has been in preparation over a long period of time and a development which could not be anticipated makes the lawyer's testimony essential . . . ."

The crucial question, therefore, is whether the "distinctive and particular value to the client of having that particular lawyer, or firm, act as counsel in the case is so great that withdrawal would work a substantial person or financial hardship upon the client."

In the American Bar Association Formal Opinion 339, which this Committee adopts, it is said:

"Under the Code the critical question is whether the distinctive and particular value to the client of that lawyer or that law firm as trial counsel in that particular case is so great that withdrawal would work a substantial personal or financial hardship upon the client. The most serious and extensive consideration should be given, with the clients informed participation, of the possibility and practicality of engaging other counsel to try the case so that the client may have the lawyer's necessary testimony without the risk of less effective representation resulting from his or her own counsel being both witness and advocate. If withdrawal, under the circumstances, would clearly work such a hardship on the client, the lawyer or firm should continue as counsel despite the necessity for such testimony."

The answer to this standard obviously will depend upon the particular circumstances of the particular case and all attending facts. In the situation you propose the total unavailability of substantial counsel, would permit you to testify on behalf of your client and also advocate your client's position at the time of trial, however, between now and then you have a continuing obligation to assist the client in obtaining other trial counsel and any doubt about the ethical propriety should b resolved in favor of testifying and against continuing as counsel. If, however, you conclude that under the circumstances there is a substantial personal or financial hardship on the client, then you have a further obligation to advise the court and opposing counsel that you intend to testify and the nature of your testimony. You should further refrain from expressly arguing your credibility as a witness.

While this Opinion has been prepared by the undersigned, it has been circulated to the other Committee members for their concurrence prior to its release to you.