LEO: Withdrawal as Counsel - Substantial  LE Op. 976


Withdrawal as Counsel - Substantial Hardship.


September 1, 1987


The Legal Ethics Committee was asked whether an attorney should withdraw

from employment as trial counsel when he or a lawyer ought to be a witness

in the case. The committee opined that DR:5-102(A) would mandate that

the lawyer withdraw as counsel unless one of the circumstances enumerated

in DR:5-101(B)(1), (2) or (3) existed. Under the facts of the inquiry

the only possible exception which might apply is DR:5-101(B)(3) which

allows an attorney to testify if withdrawal 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." The committee referred to ABA

Formal Opinion No. 339 for clarification of the term "substantial



Three instances where a "substantial hardship" might exist are (1) when a

complex suit had been in preparation over a long period of time and a

development which could not be anticipated makes the lawyer's testimony

essential; (2) when it would be manifestly unfair to the client to be

compelled to seek new trial at substantial additional expense and perhaps

to seek delay of the trial; or (3) when a long or extensive professional

relationship with a client may have afforded a lawyer or firm such

extraordinary familiarity with the client's affairs that the value to the

client of representation by that lawyer or firm in a trial involving those

matters would clearly outweigh the disadvantages of having a lawyer, or a

lawyer in the firm, testify to some disputed and significant issue.


The committee opined that the client's desire to have the attorney

continue representation even though the attorney might be called as a

witness was not sufficient to warrant a "substantial hardship." [ DR:5-

101(B)(1), (2) and (3); ABA Formal Opinion No. 339]


Committee Opinion September 1, 1987




See also LE Op. 1359.