Legal Ethics Opinion 1498

Attorney As Witness: Attorney Defending Having Placed Lien on
Client's Inheritance

You have presented a hypothetical situation in which the husband
of an attorney's client died as a result of gunshot wounds
inflicted upon him in July l988 during an altercation between the
victim, the client and the client's mother.  The client's mother
confessed to shooting the victim, was charged with murder and
convicted of involuntary manslaughter.  The client was neither
charged nor convicted, criminally, with any wrongful conduct as a
result of these events.

You advise that the victim was a wealthy individual who directed
in his will that his estate be divided equally between the
client, the child of the client's marriage with the victim, and
each of the two children of the victim by a former marriage (the
stepchildren).  Shortly after the victim's death, his business
was sold and the proceeds of that sale were placed in an escrow
fund pending the resolution of certain litigation filed against
the victim's business prior to its sale.  Pursuant to the terms
of the will, the client was entitled to twenty-five percent of
that escrow fund upon its release.

In the spring of 1990, a wrongful death action was filed against
the client and her mother by the estate of the victim, claiming
that they had conspired and caused the victim's death.  The
attorney was retained by the client to defend her in that
litigation and agreed to do so on an hourly rate plus costs.

You indicate that the litigation was extremely complex and
involved the deposition and trial testimony of scores of
witnesses.  The trial itself took approximately three weeks and
resulted in a verdict against the client and her mother in the
amount of three million dollars. 

Furthermore, you indicate that, several months prior to the
commencement of the trial, the client advised the attorney that
she was no longer able to pay his fees as incurred.  In return
for the attorney's agreement to continue the representation, the
client signed several cassigned to the firm a security interest
in that portion of the escrow fund to which she was entitled
pursuant to the terms of the victim's will.

Following the jury verdict, a judgment was entered against the
client in the amount of three million dollars and has since
become final.  When the escrow fund was released, the attorney
representing the estate was advised by the executor that the
attorney representing the client claimed a security interest in
the client's portion of the escrow fund to the extent of the fees
incurred by the attorney in her representation.  The security
interest was pursuant to the credit line notes and assignment
referred to above.

Upon learning of the security interest, the other three
beneficiaries of the victim's estate filed a Chancery action
against the attorney, the firm and the client seeking the
following relief: (1) the imposition of a constructive trust upon
the proceeds of the escrow fund otherwise due and payable to the
client; (2) the setting aside of the assignment to the attorney
as a fraudulent conveyance; and (3) the setting aside of the
assignment to the attorney as a voluntary conveyance in return
for consideration not deemed valuable at law.

You state that both the attorney and the client vehemently
contest the litigation.  You also state that the attorney is
defending himself and his firm pro se and that he has filed the
initial responsive pleadings on behalf of his client.  The
attorney representing the other beneficiaries of the estate has
filed a motion to disqualify this attorney as counsel for his
client on the grounds that the attorney will be called as a
witness to testify at trial.  You indicate that this motion has
not yet been ruled upon by the trial judge.

You have asked the committee to opine whether, under the facts of
the inquiry, it would be proper for the attorney to continue as
counsel for himself, the firm, and the client when the attorney
will be called to testify at trial.

The appropriate and controlling Disciplina inquiry are DRs
5-l0l(B) and 5-102(A) and (B) which provide, respectively, that
prior to or 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.  The exceptional circumstances of
DR 5-l0l(B)(l) through (3) which permit continuation of
representation include testimony which relates solely to an
uncontested matter or a matter of formality, testimony which
relates solely to the nature and value of legal services rendered
in the case by the lawyer, and, as to any matter, if failure to
continue representation would result in a substantial hardship on
the client because of the distinctive value of the lawyer or his
firm as counsel in the particular case.

It is axiomatic that an individual may try his own case and
testify on his own behalf.  An individual's professional status
as an attorney does not deprive the litigant of that right. 
Thus, when an attorney is a party to a lawsuit, particularly when
called upon to defend himself, the conflict between advocate and
witness do not apply and the lawyer may conduct the trial of the
case although he may be a witness for himself.  However, if the
lawyer provides testimony which involves confidential
communications between him and his co-defendants/clients and if
such testimony is adverse to his clients, the lawyer may not
continue to represent s. See Alabama State Bar Legal Ethics
Opinion 82-634, ABA/BNA Law. Man. on Prof. Conduct, 801:1036.  

Thus, the committee opines that it is not improper for the
attorney to continue to represent himself, his firm, and the
client when he will be called to testify, unless and until it is
apparent that such testimony will be prejudicial and adverse to
his client.  In that case, attorney would have to withdraw from
representing his client.

The committee is aware that, in certain circumstances, however,
it would be improper for an attorney to represent his firm or
other attorneys in his firm.  See, e.g., LEOs #958, l05l, l3l5.

Committee Opinion
December 14, 1992