LEO: Attorney - Attorney as Witness LE Op. 1011
Attorney - Attorney as Witness.
December 12, 1987
You advise that Attorney A and his wife B own a parcel of land which C
contracted to purchase. The contract contained a contingency requiring the
board of supervisors to pass an ordinance which would create a category of
use for which the land is intended for use by C.
After the board of supervisors acted upon C's request, C took the
position that the contingency was not met and, therefore, C no longer had
an obligation under the contract. A and B wish to recover damages against
C for breach of contract.
You ask three questions relative to this situation. The Committee will
address these questions in the order presented in your letter.
1. You wish to know whether A may represent both himself and B when A
will be a witness in the action. The Committee believes DR:5-105(B) is
dispositive of your inquiry. DR:5-105(B) states that a lawyer shall not
accept employment in contemplated or pending litigation if he knows or it
is obvious that he or a lawyer in his firm ought to be called as a
witness. There are exceptions to this rule (see DR:5-101(B)(1); (B)(2)
2. You ask whether A may represent himself when A will be a witness in
the action. In this situation, it would not be improper for A to be a
witness in the action.
3. You also ask whether it is permissible for A, after B has sought and
received independent legal advice from an attorney, to obtain an
assignment of B's rights, title and interest, in suing C for damages which
B may have sustained. This question does not raise any ethical issues.
Committee Opinion December 12, 1987