LEO: Witness: Attorney as Witness in a LE Op. 1118
Witness: Attorney as Witness in a Substantially Related Case.
September 1, 1988
You have presented a hypothetical situation in which A has a contract to
purchase a parcel of land from B; however, this contract is contingent on
the county's issuance of a building permit to A. When A, through his
Attorney C, is unsuccessful in obtaining a permit, B retains Attorney D
with Law Firm X and files a mandamus and declaratory judgment against the
county. During the litigation, A cooperates with Law Firm X in their
preparation for trial. In addition, A has several conversations with
Attorney D regarding the status of this litigation as well as the status
of A's contract with B.
B prevails at trial against the county and Attorney D notifies A of this
development. A then makes demand for settlement; however, B, through his
Attorney D, refuses to convey the parcel to A, contending that the
contract is no longer valid.
A, now represented by Law Firm Y, files suit against B for specific
performance of the contract. In this suit, B is represented once again by
Attorney D of Law Firm X.
You have asked whether it is ethically permissible for Attorney D and/or
Law Firm X to represent B in the specific performance suit; and should Law
Firm Y bring this matter to the attention of Law Firm X.
Given the facts of this situation, the Committee believes that DR:5-102(
B) is the appropriate and controlling rule involved. Disciplinary Rule 5-
102(B) states that if an attorney, after undertaking employment in
contemplated or pending litigation, learns it is obvious that he or a
lawyer from his firm may be called as a witness other than on behalf of
his client, he may continue the representation until it is apparent that
his testimony is or may be prejudicial to his client.
Please see LE Op. 836 and LE Op. 866. Although they are not directly
on point with the matter in question, the Committee opines that they are
dispositive of the issue you have raised in your inquiry.
You also wish to know whether Law Firm Y has a duty to inform Law Firm X
of a possible conflict of interest existing should Attorney D be called to
testify. Since this is not an issue within the purview of the Standing
Committee on Legal Ethics, the Committee feels that if you wish you may
advise Attorney D as a courtesy, if he is not already aware of the
possibility of a conflict.
Committee Opinion September 1, 1988