CI-821

August 23, 1982

SYLLABUS

When a lawyer's testimony is necessary to support a client's cause of action, the lawyer must withdraw from the representation where (a) the case is in its initial stages, (b) the issues are not complex, (c) no particular lawyer expertise is necessary to the conduct of the case, and (d) adequate substitute counsel is readily available.

References: MCPR DR 5-101(B), DR 5-102(A); ABA C-339; GCR 928; Auseon v. Reading Brass Co., 22 Mich App 505 (1970).

TEXT

A lawyer successfully represented a plaintiff in an action against a law firm for charging a "clearly excessive fee" in violation of GCR 928. Following the decision in the excessive fee action, a member of the defendant law firm advises the lawyer that if the plaintiff discloses the the fee decision, the law firm member would cause plaintiff trouble with the IRS. Plaintiff disclosed the decision, and another client has contacted the lawyer about suing the law firm.

The lawyer may need to testify regarding the law firm's threat of IRS action against the former client.

MCPR DR 5-101(B) and DR 5-102(A) provide that the lawyer must refuse employment or withdraw from employment if the lawyer knows that he or she will be called as a witness or if it is obvious that he or she ought to be called as a witness, with four (4) exceptions listed in DR 5-101(B), which are also applicable to DR 5-102(A). The four exceptions are:

(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 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 firm as counsel in the particular case.

The phrase "ought to be called as witness" is unclear. Some authorities suggest that disqualification of the lawyer is required when his or her testimony is "necessary" to the case. See Auseon v. Reading Brass Co., 22 Mich App 505 (1970). It is unclear whether the lawyer's testimony on the threat is "necessary" to the claim of excessive fee. If, because of the facts within the lawyer's particular knowledge or because of other theories of recovery included in the complaint it will be necessary for the lawyer to testify, then the lawyer must withdraw unless one of the four (4) exceptions applies.

The facts describe do not indicate the applicability of exceptions (1) through (3). DR 5-101(B)(4) is a catch-all provision permitting otherwise improper testimony in cases in which its omission would work a "substantial hardship" on the client because of the "distinctive value" of the lawyer or firm in the case. As stated in ABA C-339:

"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 . . . . 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."

Examples of exceptional situations in which a lawyer may function as both witness and advocate on behalf of the client are suggested in ABA C-339 as follows:

1. A complex suit in preparation over a long period of time coupled with a development which could not be anticipated makes the lawyer's testimony essential.
2. A long or extensive professional relationship with a client giving the lawyer or the firm such extraordinary familiarity with the client's affairs that the value to the client of representation by that lawyer or firm in a trial involving those matters clearly outweighs the disadvantages of having the lawyer, or a lawyer in the firm, testify to some disputed and significant issue.
3. A lawyer having knowledge of misconduct of a juror during the trial of a case is not compelled to withdraw as counsel in the proceedings in order to testify as to the facts of which he has knowledge."

While not all inclusive, these situations illustrate the unusual circumstances DR 5-101(B)(4) is intended to serve.

In deciding on whether to withdraw, the lawyer should consider all facts which bear upon his or her value to the client, and on the harm the client would suffer if the lawyer withdraws from the case. In deciding a course of action, the lawyer should consider whether the lawyer has any particular expertise in the subject matter of the litigation of benefit to the client, whether the case presents complex issues which substituted counsel would be required to expend considerable time in learning at the expense of the client, whether the case is in its early stages or substantially completed, and whether the client can obtain competent substitute counsel without undue expense and difficulty.

In the event that an evidentiary hearing requiring the lawyer's testimony becomes necessary, and the lawyer concludes that the appropriate standards exist for continued representation of the client, the lawyer must advise the court and opposing counsel immediately of the intention to testify and the nature of the testimony. The lawyer should also refrain from expressly arguing the creditability of the lawyer's own testimony at trial.