LEO 1136

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

CROSS REFERENCES