LEGAL ETHICS OPINION 1709 ATTORNEY FOR PLAINTIFF TESTIFYING
AT VENUE HEARING RE: STATEMENTS BY
DEFENDANT MADE PRIOR TO SUIT BEING
FILED
You have presented a hypothetical situation in which a
plaintiff's lawyer has testified in a venue hearing about a
defendant's pre-trial statements to the lawyer regarding where
the defendant conducted his business or other affairs. Under the
facts you have presented, you have asked the committee to opine
as to the propriety of this same lawyer continuing to represent
the plaintiff. You indicate that the venue issue, having been
resolved by the court, will not come up again during the trial on
the merits. The appropriate and controlling disciplinary rule
relative to your inquiry is DR 5-102(A), which is part of the
"witness-advocate rule" and which states:
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).
A lawyer may continue to conduct a trial on behalf of a client
where he or a member of his firm testifies: (1) 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; (2) solely to the nature and value
of legal services rendered in the case by the lawyer or his firm
to the client; or (3) where refusal to testify 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. DR 5-101(B)(1)-(3).
In the facts you present, it appears that none of the three
exceptions applies. The issue of venue is neither uncontested
nor a mere formality, if plaintiff's counsel would have to
testify as to defendant's statements as they relate to that
issue. The "substantial hardship" exception under DR 5-101(B)(3)
is to be construed narrowly. Estate of Andrews v. United States,
804 F.Supp. 820, 829 (E.D. Va. 1992) citing United States v.
Johnson, 690 F.2d 638, 642 n.9 (7th Cir. 1982); Wickes v. Ward,
706 F.Supp. 290, 293 (S.D.N.Y. 1989). Nothing presented in your
hypothetical demonstrates that the plaintiff's counsel or his
firm has a distinctive value to the client as a result of any
long-standing relationship with the client and familiarity with
the client's affairs such that changing lawyers would pose a
"substantial hardship" to the plaintiff. Cf., Estate of Andrews
v. United States, supra.
Presumably, the question of venue would be taken up at a pre-
trial hearing and therefore any testimony of plaintiff's counsel
on that matter would be outside the presence of any jury that
would hear the case on its merits. However, the policies and
considerations which support the "witness advocate" rule do not
permit the committee to restrict its application solely to
matters before a jury. See, e.g., United States v. Johnston, 690
F.2d 638, 644 (7th Cir. 1982) (policy considerations supporting
witness advocate rule apply to proceedings tried to a judge).
The rule is designed to protect the client's interests in not
having testimony produced on contested issues from a witness who
is obviously interested in the outcome and is thus subject to
impeachment for that reason. EC 5-9. Impeachment can occur
before a judge or jury. Further, the rule is also based on a
sense of fairness to the adverse party to obviate any concern
that the trier of fact might attach undue weight to the advocate-
witness's testimony. Estate of Andrews v. United States, supra,
804 F.Supp. at 824. Finally, the rule serves to preserve the
integrity of the judicial system by, among other things, avoiding
any public perception that a testifying advocate has distorted
the testimony to further his or her client's cause and prevail in
the litigation. Id.
The committee concludes that it would be improper for the
plaintiff's counsel to continue to conduct the litigation on
behalf of the plaintiff having testified for the plaintiff at
the pre-trial venue hearing. Subsequent to your original
request, you have asked if the disqualification of plaintiff's
counsel as trial counsel could be avoided if: (1) plaintiff
hires another lawyer, not affiliated with the witness-advocate,
to file the suit initially and to handle the pre-trial venue
hearing, including the examination of the witness-advocate; and
(2) the witness-advocate enters his appearance as counsel of
record after the pre-trial hearing on venue is concluded.
There is a division of authority on whether an attorney who
testifies in a pre-trial proceeding is automatically disqualified
from participating as counsel at trial. Applying ABA Code of
Professional Responsibility, DRs 5-101(B) and 5-102, one court
has ruled that these rules do not mandate a per se
disqualification of a prosecutor who testified at a pretrial
suppression hearing. United States v. Johnston, supra, 690 F.2d
at 645 (however the trial courts are encouraged to substitute a
new prosecutor to try the case). Under ABA Model Rule 3.7 (a), a
lawyer who testifies in a pretrial proceeding is not disqualified
from representing the client at a trial. The rule states "a
lawyer shall not act as an advocate at trial in which the lawyer
is likely to be a necessary witness except where. . . ." MR
3.7(a) (emphasis added). See also, Colorado Ethics Op. 78
(1994) (MR 3.7 applies only to a lawyer acting as an advocate at
trial, and not to pre-trial matters, unless the lawyer's
testimony, if admitted at trial would reveal the lawyer's dual
role).
Unlike Model Rule 3.7, the language of DR 5-102 (A) does not, in
the committee's opinion, allow it to treat the pretrial venue
hearing and the actual trial as two separate proceedings for
purposes of the witness-advocate rule. Rather, the committee
must interpret and apply DR 5-102 (A) giving effect to the plain
and ordinary meaning of its terms. Also, the committee must be
mindful that the witness advocate rule is a broad prophylactic
rule designed to prevent even the appearance of impropriety.
Where an attorney testifies as a witness as to some contested
pretrial issue, then later appears as an advocate for the same
party on whose behalf he testified, the court, litigants and
observing public could have a distorted view of the judicial
process that would undermine confidence in the legal system.
The use of another attorney only to file suit and examine the
attorney-witness, so that the attorney-witness can then take over
the case as an advocate and be substituted as counsel, violates
DR 1-102 (A)(2) (a lawyer may not circumvent a disciplinary rule
through the actions of another). In addition, such a situation,
if considered acceptable under the Code of Professional
Responsibility, would enable the unscrupulous lawyer to
manipulate and fashion his testimony to advance his own self-
interest in prevailing as a advocate for the client. Therefore,
in the committee's opinion, the disqualification of the witness-
advocate cannot be avoided by the limited employment of outside
counsel with an understanding that the witness-advocate will
appear later as counsel of record in the same case.
You have also presented a second question regarding whether it is
permissible for a lawyer to contact an opposing party, directly
and ex parte, when that party was represented by counsel in
litigation after the litigation has ended in a non-suit. The
appropriate and controlling disciplinary rule relative to your
inquiry is DR 7-103(A)(1) which prohibits an attorney from
communicating directly with a party that he knows to be
represented by counsel, unless he has the prior consent of
opposing counsel or is authorized by law to do so.
The committee has previously opined that the entry of a non-suit
does not terminate the representation of a party or certain
duties owed to a client under an attorney-client relationship.
[LEOs 1432, 1088, 872, 841 and DR 2-108(D)]. In two prior
opinions, the committee has concluded that it is improper for an
attorney to communicate with an adverse party that was
represented by counsel during the course of a proceeding which
has been concluded and there was no suit pending. In Legal
Ethics Opinion 963 the committee opined that it is improper for
an attorney to send a letter to the opposing party concerning
judgment matters during the appeal period from the general
district court when the opposing party was represented by counsel
at trial. The committee applied DR 7-103(A)'s "anti-contact"
rule even though no appeal had yet been filed nor had opposing
counsel indicated an appeal would be filed.
Similarly, in Legal Ethics Opinion 1389 the committee found it
improper for an attorney to communicate with an opposing party
about a visitation problem after the conclusion of litigation
involving custody, support and visitation even though a final
order had been entered and there was no communication from the
opposing party's counsel that they continued to represent their
client. The committee concluded that the entry of a final order
in the custody did not terminate the opposing counsel's
relationship with their client and that the presumption should be
that the attorney continues to represent the client.
The committee is of the opinion that the taking of a nonsuit
pursuant to Virginia Code 8.01-380 does not automatically
terminate the attorney-client relationship because of the ability
of the party and their counsel to refile suit within the time
periods prescribed in Virginia Code 8.01-229. Thus, when a
nonsuit has been taken, before communicating with the opposing
party an attorney must contact opposing counsel and inquire as to
whether the opposing party remains represented by counsel and
govern his or her conduct accordingly.
[DRs 1-102(A)(2), 5-101(B)(1), (2), (3), 5-102(A), 7-103(A)(1);
LEOs 841, 872, 1088, 1389, 1432; Va. Code 8.01-229, 8.01-380;
Colo. Ethics Op. 78 (1994); ABA Model Rule 3.7(a); Estate of
Andrews v. United States, 804 F.Supp. 820, 829 (E.D. Va. 1992)
citing United States v. Johnson, 690 F.2d 638, 642 n.9 (7th Cir.
1982); Wickes v. Ward, 706 F.Supp. 290, 293 (S.D.N.Y. 1989)]
Committee Opinion
February 24, 1998
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