Legal Ethics Opinion No. 1455

Conflict of Interest; Attorney As Witness; Attorney Representing
Wife in Custody Matter 

You have presented a hypothetical situation in which a client
("C") and her ex-husband ("X") were divorced in 1984, with C
receiving sole custody of their minor child.  C remarried in 1991
to an attorney ("A").  In 1992, X filed a petition for change of
custody and support, giving C only seven days until the hearing. 
Attorney A sought to negotiate a settlement before the hearing
with X's attorney, and, when that failed, appeared at the hearing
on C's behalf, asking for a trial date to be set.  Subsequent to
the hearing, A continued to act as C's attorney, seeking to
negotiate a settlement on C's behalf.

You indicate that although C would prefer to resolve the dispute
with X by agreement, if there is to be a custody hearing, she is
willing to proceed with A as her attorney. You also indicate that
C has no intention of calling A as a witness and A would not be a
necessary witness to prosecute her case at trial.  Further, you
indicate that there is no reason to believe that, if X called A
as a witness, his testimony would be prejudicial to C. Finally,
you indicate that A's testimony, if he is called as a witness,
would be
merely cumulative of C's, and that it could also be prevented by
the marital privilege.

You also indicate that C is unemployed and that employment of new
counsel would be a significant, if not impossible, financial
hardship for her. Moreover, you indicate that the minor child is
emotionally disturbed and that A has unique experience in mental
health issues.

Finally, you advise that X has filed a motion to remove A as
counsel on the grounds that he would be a witness in the case as
C's spouse and the minor child's stepfather.  C has opposed this
motion, stating her intention not to call A as a witness.  X's
motion also asks for referral to court mediation services, which
C does not oppose. 

You have asked the committee to opine whether, under the facts of
the inquiry, A may act as C's attorney in pre-trial  negotiations
and motions, court custody hearing, and court mediation
proceedings.

The appropriate and controlling Disciplinary Rules related to
your inquiry are DR 5-101(B)(3) which provides that a lawyer
shall 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 that he may undertake the
employment and he or a lawyer in his firm may testify as to any
matter, if refusal 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; and DRs 5-102(A) and (B) which
provide respectively that if, after undertaking employment in
contemplated or pending litigation, a lawyer learns or it is
obvious that he or a lawyer in his firm ought to be called as a
witness on behalf of his client, he shall withdraw from the
conduct of the trial and his firm, if any, shall not continue
representation in the trial, except that he may continue the
representation and he or a lawyer in his firm may testify in the
circumstances enumerated in DR 5-101(B)(1) through (3) and if,
after undertaking employment in contemplated or pending
litigation, a lawyer 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, he may continue the representation until it is
apparent that his testimony is or may be prejudicial to his
client.

Prior Legal Ethics Opinions issued by this committee have
demonstrated that the "substantial hardship" exception under DR
5-101(B)(3) rarely applies.  See, e.g., LEOs #976, #1136, #1359,
#1386; ABA Formal Opinion #339; cf. LEO #l386.  The committee
feels, however, that the propriety of A's representation of C
does not turn on the applicability of this exception. 

Instead, the committee believes primary concern deals with DR
5-102(A). Apparently, C does not intend to call A as a witness
nor does the committee believe it to be obvious that A ought to
be called as a witness by C, simply by virtue of his status as
husband of C and stepfather of the minor child.  Therefore, the
committee opines that because A has neither learned nor is it
obvious that A ought to be called as a witness on behalf of his
client/wife C, continued representation of C by A is not improper
under DR 5-102(A).

Furthermore, the committee opines that under the plain language
of DR 5-102(B), Attorney A may continue the representation of
client C, even if called to testify by X, until it is apparent
that his testimony is or may be prejudicial to C.  See also LEO
#1240, 1226, 866.

Thus, the committee opines that it would not be improper for
attorney A to act as C's counsel in pretrial negotiations and
motions, at a custody hearing, and in court mediation
proceedings.

Committee Opinion 
March 13, 1992