Legal Ethics Opinion #1513

Attorney As Witness: Attorney Representing Client on Appeal to
the Supreme Court of Virginia After Attorney's Partner Testified
on Behalf of Client At Trial  

You have presented a hypothetical situation in which Partner A
and Law Firm Alpha represented a client in negotiations with her
father and two sisters concerning the disposition of a family
business and the distribution of the father's estate during his
remaining lifetime and upon his death.  As a result of these
negotiations, a plan was put in place whereby the two sisters'
stock would be redeemed immediately; part of the father's stock
would be transferred to the client; a redemption agreement
(personally guaranteed by the client) would be executed for the
eventual acquisition of the father's shares; and a will and trust
would be made by the father, providing for the allocation of his
estate among the three daughters in agreed proportions.  The
father's stock was ultimately redeemed several years later, prior
to his death.  At the time of this redemption, the father amended
his will and trust to eliminate the client's share of his estate
as had been included in the earlier agreed plan, with the
exception of her one-third share of the father's residence. 
Neither the father nor the sisters notified the client of this
change.  The amended will contained a "no-contest" or in terroremclause providing that anyone who challenged the will would
forfeit her share of the father's estate.

You have further indicated that the client first learned of the
change after the death of her father several years later.  She
then contacted Partner A, who advised her that the change in her
father's will and trust violated a contract to make a will
between her father and herself (as well as the other sisters)
made a number of years earlier.  Based on this advice, Partner B
of Law Firm Alpha brought suit on behalf of the client against
the estate of her late father.

Shortly after pretrial discovery began in the case, when it was
first learned that there would be a factual (as opposed to a
purely legal) dispute, it became obvious that Partner A would
need to be called as a witness at the trial of this matter.  The
law firm, therefore, withdrew from the representation of the
client for the remainder of pretrial discovery and the trial of
the case.  Partner A was called as a witness on behalf of the
client at the trial and testified concerning the negotiations,
communications, and actions that Partner A relied upon in
advising the client that a contract to make a will had been made
and subsequently breached.  Witnesses who were called by the
estate and the sisters testified that no contract had been made
(or breached).

You indicate that the trial judge ultimately ruled that the
evidence failed to establish the existence of a contract, finding
for the defendants on the contract claim.  The trial judge,
however, found that the plaintiff had brought her suit "in good
faith upon the advice of counsel," and held that a "no-contest"
provision in the amended will of the client's father would not be
"effective" under such circumstances to deprive plaintiff of her
one-third share of the father's residence.

You advise that the client, through her substitute trial counsel,
has filed a notice of appeal to the trial court's denial of her
breach of contract claim on the merits.  The defendants have
noticed an appeal to the trial court's ruling that the "no-
contest" clause in the will would not be effective as to the
client in these circumstances.  It is anticipated that the client
will fully pursue her appeal to the Supreme Court of Virginia. 
For purposes of this appeal, the client has requested that Law
Firm Alpha represent her as counsel of record before the Virginia
Supreme Court, with the understanding that if the ultimate
decision of the Supreme Court is to remand the case for a new
trial, Law Firm Alpha will not be able to represent her at trial
if Partner A is likely to testify.  Having a long-standing
relationship with the client, the law firm would like to serve as
counsel of record for the client on appeal with Partner B (but
not Partner A) appearing before the Supreme Court as counsel on
behalf of the client on appeal.

You have asked the committee to opine whether, under the facts of
the inquiry, Partner B in Law Firm Alpha may represent the client
as counsel of record in connection with the appeal to the Supreme
Court of Virginia, given the fact that Partner A's testimony is
now concluded and that credibility of witnesses is not an issue
to be decided by the Supreme Court.

The appropriate and controlling Disciplinary Rules related to
your inquiry is DR 5-101(B) which states, in pertinent part, 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 if the testimony will relate solely to an uncontested
matter or to a matter of formality and there is no reason to
believe that substantial evidence will be offered in opposition
to the testimony, or if, as to any matter, 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

The committee is of the opinion that employment on the appeal
does not constitute a separate representation from that of the
trial since argument on appeal may require an attack on the
credibility of the partner's testimony at trial.

Therefore, the committee is of the opinion that the prohibitions
of DR 5-l0l(A) against a lawyer serving simultaneously as a
witness and an advocate are equally applicable at the appellate
level of a case.  Thus, the committee opines that it would not be
proper for Partner B to represent the client as counsel of record
on appeal to the Supreme Court of Virginia.  

Committee Opinion
May 11, 1993