LEO: Attorney as Witness: Withdrawal LE Op. 1136
Attorney as Witness: Withdrawal if it will Cause Substantial
Hardship on the Client.
September 9, 1988
Your inquiry, which has apparently been reviewed and approved by all
interested parties, presents the following set of facts. Attorneys X and Y,
not members of the Virginia State Bar, respectively represent two separate
defendants before a United States District Court in Virginia in a criminal
action for the same activities. Attorneys X and Y have apparently
represented the defendants on the issues involved for more than four
years. Attorneys X and Y claim that they, on behalf of their clients,
reached agreements with Internal Revenue Service agents in another state
to provide their respective clients with transactional immunity from
criminal prosecution for tax violations. The IRS agents dispute the
position. Among the issues under the pending indictments is the issue of
whether or not such immunity was granted. The issue is a material and
partially dispositive matter. A pre-trial hearing has been set to resolve
the dispute over transactional immunity.
Attorneys X and Y have stated that they are the best, and in some cases,
the only witnesses to the conversations with the IRS agents, making them
necessary witnesses to the disputed issue. Attorneys X and Y take the
position that the immunity matter in issue is pre-trial, and is not
governed by DR:5-102. Alternatively, they assert that the exceptions in
DR:5-102, found in DR:5-101(B)(3), apply under the facts. The issues
require no particular subject matter expertise, and any capable,
experienced trial attorney could provide competent representation on
behalf of the two criminal defendants. This issue is apparently not a new
issue in the case.
As to the first position taken by defense attorneys that the immunity
matter in issue is a pre-trial one, and is not governed by DR:5-102, the
opinion of the Committee is that the Code of Professional Responsibility
does not provide a distinction between testifying in pre-trial issues and
testifying at trial.
As to whether or not attorneys X and Y fall within the exceptions offered
by DR:5-101(B)(3) to DR:5-102, the Committee is without sufficient
information, other than conclusory statements apparently not agreed to by
all parties, to say that a substantial hardship would be worked on the
clients should attorneys X and Y withdraw from representation.
The strictures of DR:5-102 and DR:5-101 are directed against the
assumption or continuance of representation if an attorney needs to
testify on behalf of his client. The roles of adversary and witness are
inconsistent. Withdrawal must be effected unless it 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." DR:5-101(B)(3).
Ethical Consideration 5-10 [ EC:5-10] provides language to determine
what constitutes a substantial hardship:
Problems incident to the lawyer-witness relationship arise at different
stages; they relate either to whether a lawyer should accept employment or
should withdraw from employment. ... In the exceptional situation where it
will be manifestly unfair to the client for the lawyer ... to withdraw
when he will likely be a witness on a contested issue, he may serve as
advocate even though he may be a witness. In making such decision, he
should determine the personal or financial sacrifice of the client that
may result from his ... withdrawal therefrom, the materiality of his
testimony, and the effectiveness of his representation in view of his
personal involvement. In weighing these factors, it should be clear that ...
withdrawal will impose an unreasonable hardship upon the client before
the lawyer ... continues the employment. Where the question arises, doubts
should be resolved in favor of a lawyer testifying and against his ...
continuing as an advocate.
The emphasis added by the last sentence provides a necessary guide for
the facts as presented by your inquiry. The Committee therefore opines
that, under the limited facts presented, it would be inappropriate for
attorneys X and Y to continue as counsel to their respective clients and
testifying on the issues.
Committee Opinion September 9, 1988
See also LE Op. 1359.