LEO 1313

LEO: Attorney-Client Relationship — Conflict LE Op. 1313

Attorney-Client Relationship — Conflict of Interests — Power of Attorney — Witness: Attorney Representing Principal and Niece in Action Against Attorney in Fact, Former Client, When Attorney May Be Called as a Witness.

November 16, 1990

You have advised that an individual came to your firm and requested that a power of attorney be prepared under which he would be the attorney in fact for another individual, the principal. The document was prepared, delivered to and paid for by the proposed attorney in fact, but was executed by the principal and notarized outside of your office. The document was recorded in the county in which the principal resided and, some fourteen months later, the power of attorney was revoked which revocation was similarly recorded in the same county. You have further indicated that it is now alleged that, subsequent to the execution of the power of attorney by the principal, the attorney in fact assumed full control of all assets owned by the principal, and it is further alleged that the attorney in fact made substantial expenditures for his own personal use. You have been requested by a niece of the principal, with whom the principal now resides, to assist her and the principal in attempting to recoup some of the funds allegedly expended by the attorney in fact.

You have requested that the Committee consider the propriety of your accepting representation of the niece and the principal in view of the fact that the power of attorney was originally prepared in your office.

The appropriate and controlling disciplinary rules relative to your inquiry are DR:5-105(D) and DR:5-101(B). With regard to a lawyer's representation of consecutive adverse clients, DR:5-105(D) prohibits a lawyer who has represented a client in a matter from thereafter representing another person in the same or substantially related matter if the interest of that person is adverse in any material respect to the interest of the former client unless the former client consents after disclosure. Disciplinary Rule 5-101(B) addresses the role of the attorney who may be called as a witness in a matter and proscribes a lawyer from accepting 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, except in situations where one of three exceptions would apply: (1) if the testimony will relate solely to an uncontested matter or to a matter of formality; (2) if the testimony will relate solely to the nature and value of his or his firm's legal services rendered to the client; or (3) if refusal of employment 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 Committee is of the view that the preparation of the document constituted your firm's representation of the attorney in fact, despite the fact that the document was ostensibly prepared for the benefit of the principal with whom your firm did not have an attorney-client relationship and who executed the power of attorney outside the auspices of your firm. Hence, since the principal and his niece who now seek your representation are adverse to the attorney in fact in the current allegations, and presuming that you were privy to his secrets and confidences, it would be improper for you to accept representation of the principal and his niece unless the attorney in fact consented after full disclosure, as required by DR:5-105(D). (See LE Op. 672, LE Op. 933, LE Op. 1156)

Furthermore, the Committee opines that the potential for your firm's participating as a witness in any litigation would make such representation improper unless one of the three exceptions enumerated in DR:5-101(B) were applicable to the situation. The Committee has earlier opined that, unless one of those exceptions apply, it is improper for an attorney to continue to represent a client when the attorney expects that he or a lawyer in his firm may be called as a witness and the testimony relates to the central issue of the cause of action. (See LE Op. 866, LE Op. 907) Further guidance may be found in Ethical Consideration 5-9 [EC:5-9] which provides that “[a]n advocate who becomes a witness is in the unseemly and ineffective position of arguing his own credibility. The roles of an advocate and of a witness are inconsistent . . .;” and Ethical Consideration 5-10 [EC:5-10] which finds that “Where the question arises, doubts should be resolved in favor of the lawyer testifying and against his becoming or continuing as an advocate.”

Committee Opinion November 16, 1990

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