You have presented a hypothetical situation in which an attorney
represents  plaintiffs in a boundary line dispute.  You indicate
that the attorney formerly represented the defendant by performing
a title examination, i.e., drafting a title opinion letter, on a
tract of land which is part of the boundary dispute.  The attorney
is to be called, by the defendant, to testify regarding the
findings of the title examination as it relates to the elements of
proof in a boundary line dispute.  The former client does not
consent to the attorney's representation of the plaintiff. 

You have asked the committee to opine, under the facts of the
inquiry, (1) whether the plaintiff's attorney has a conflict of
interest; and (2) whether the attorney can continue his
representation, knowing that he is to be called as a witness.

The appropriate and controlling Disciplinary Rules related to your
inquiry are DR 5-102(B) which states 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 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; and DR 5-105(D), which states that a
lawyer who has represented a client in a matter shall not
thereafter represent another person in the same or substantially
related matter if the interest of that person is adverse in any
material respect to the interest of the former client unless the
former client consents after disclosure.

Since an attorney-client relationship was established, the
defendant is a former client of the attorney and thus the
provisions of DR 5-105(D), dealing with former client conflicts of
interest, are applicable to the facts presented.  Thus, it would be
improper for the attorney to represent the plaintiff against the
defendant in the boundary line dispute without the consent, after
full disclosure, of the former client/defendant.

Given that the attorney may not represent the plaintiff in the
matter, your inquiry concerning the attorney as a witness on behalf
of the defendant is no longer relevant.  The committee notes,
however, that under the plain language of Disciplinary Rule 5-
l02(B), an attorney may continue representation of a party, even if
called to testify by the opponent, until it is apparent that his
testimony is or may be prejudicial to his client.  See LEOs #866,
#1226, #1240, #1455, #1517, #1528.  

[DRs 5-102(B), 5-105(D); LEOs 866, 1226, 1240, 1455, 1517, 1528]

Committee Opinion
November 29, 1994