Legal Ethics Opinion No. 1394

Witnesses/Attorney As: Attorney Representing Client in Pending
Civil Suit in Which Attorneys and Other Members of the Firm Will
be Called to Testify 

You have advised the committee that disputes arose within
partnership ABC which was comprised of minority partner A,
minority partner B, and general partner C.  The disputes in
question resulted in separate suits being filed by partners A and
B against C, calling for dissolution of the partnership and other
relief.  General partner C counterclaimed for damages in both
suits, and the suits were ultimately settled following several
months of negotiations, with general partner C buying out
partners A and B at an agreed-upon price.  

Sixteen months later, having learned certain information in the
interim which led him to conclude that general partner C had
withheld pertinent information during the buy-out negotiations,
partner A brought a second suit against C to set aside the
settlement, alleging fraud-in-the-inducement.  Partner A was
represented in this second suit by Attorney A, and you indicate
that partners A and B acted in concert during the course of this
suit, although partner B was not a party to it. You advise that
during the course of discovery, Lawyer I, who previously served
as Vice President and General Counsel to partner B (a corporation
and its subsidiaries), and Lawyer II were deposed by defendant C
as to the discovery date and nature of the alleged fraud.  The
facts you cite indicate that Lawyers I and II were both members
of Law Firm B.  Furthermore, you indicate that Lawyer I has been
served by defendant general partner C with a trial subpoena to be
a witness and that the testimony of Lawyers I, II, and other
members of their firm is critical and will be required as to the
discovery date of the alleged fraud.

Subsequently, sixteen months after the filing of the second suit
and during its pendency, partner B filed a third suit against
general partner C.  Partner B is represented by Lawyers I and II,
who have been deposed in the second suit as noted above, and
their law firm, with which B has been involved from the early
stages of the formation of the ABC partnership.

You have asked that the committee consider the propriety of
Lawyers I and II and their firm accepting and continuing the
representation of partner B in the third suit.

The appropriate and controlling disciplinary rules relative to
the issue you raise are DR 5-l0l(B) which dictates that a lawyer
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, except in three circumstances; and DR
5-l02(B) which permits a lawyer to continue representation of a
client in litigation after he learns or it is obvious that he or
a lawyer in his firm may be called as a witness other than on
behalf of his client until such time as it becomes apparent that
his testimony is or may be prejudicial to his client.  

The committee notes that the proscription of DR 5-l0l(B), as to
initial acceptance of employment, is equally applicable to a
lawyer who ought to be called as a witness either on behalf of
his client or by the opposing party.  The question of whether
adverse counsel "ought" to call an attorney for the opposing side
must be determined on a factual, case-by-case basis.  Where there
is a dispute as to the necessity for an attorney to testify, the
committee is of the belief that the dispute must be resolved by a
finder of fact, utilizing the proper court procedures for
challenging a witness subpoena.  The committee cautions that such
tactics hold the potential for improper manipulation of the
adversary process through the creation of a witness-lawyer who
then is subject to the withdrawal or disqualification mandates of
DR 5-l0l(B) and DR 5-l02(B), even though the substance of the
lawyer's testimony may be cumulative or equally available from
other sources.  See, e.g., Kroungold v. Triester, 52l F.2d 763,
766 (3rd Cir. l975)(citing and quoting footnote to Model Code of
Prof. Resp. DR 5-l02(B) stating that rule "was not designed to
permit a lawyer to call opposing counsel as a witness and thereby
disqualify him as counsel"); Cottonwood Estates v. Paradise
Builders, 624 P.2d 296, 302 (Az. l98l)(although disqualifying
attorney-witness from representing corporation of which he was an
officer, court set out test indicating that "[w]hen an attorney
is to be called other than on behalf of his client, a motion for
disqualification must be supported by a showing that the attorney
will give evidence material to the determination of the issues
being litigated, that the evidence is unobtainable elsewhere, and
that the testimony is or may be prejudicial to the testifying
attorney's client").  Such a fact-finding function is beyond the
purview of the committee.  

Assuming the validity of the facts as you have provided them,
which facts indicate that the testimony of Lawyers I and II is
critical and material to the central issue of fraud, the
committee is of the opinion that Lawyers I and II should not have
accepted employment to represent Partner B in the third suit,
since they knew or should have known that they ought to be called
as witnesses in the matter.  You have provided no indication of
the existence of any of the three circumstances articulated in DR
5-l0l(B) as exceptions.  

Since, under the facts you have provided, the committee views the
acceptance of employment to have been improper ab initio, the
committee finds inapplicable the latitude provided under DR
5-l02(B) to an attorney who is called as a witness other than on
behalf of his client, which would otherwise allow the attorney to
continue the representation until it is apparent that his
testimony is or may be prejudicial to his client. 

Committee Opinion
February 15, 1991