Cba Ethics Opinion No. 78: Disqualification of the Advocate-witness
| Publication year | 1988 |
| Pages | 1559 |
| Citation | Vol. 08 No. 1988 Pg. 1559 |
1988, August, Pg. 1559. CBA Ethics Opinion No. 78: Disqualification of the Advocate-Witness
The purpose of this Opinion is to provide guidance in situations in which an attorney might or ought to be called as a witness.(fn1) Also discussed are the ethical limitations and the considerations of subpoenaing, listing or identifying another party's attorney as a witness or potential witness.
Although the applicable Disciplinary Rules are frequently used as the basis for a motion to disqualify another party's counsel, this Opinion does not purport to be a legal opinion as to the circumstances under which a motion to disqualify should be filed, granted or denied.
Subject to certain enumerated limited exceptions, an attorney may neither accept employment as an advocate nor, if such employment has been previously accepted, continue as an advocate, if (s)he knows or it is obvious that (s)he, or another lawyer in the firm, ought to be called as a witness.
If, after accepting employment as an advocate, a lawyer learns, or it is obvious that (s)he or another lawyer in the firm may be called as a witness, other than on behalf of the client, the lawyer may continue as an advocate until it is apparent that the testimony is or may be prejudicial to the client.
There is no ethical standard that automatically disqualifies an advocate from representing a client in litigation concerning a business matter or transaction in which the advocate acted as counsel or in litigation involving facts developed by the advocate's investigation. However, counsel must be cognizant of the possible basis for disqualification inherent in such situations and must decline employment or withdraw from representation if the standards mentioned herein are violated.
In the zealous representation of a client's cause, a lawyer may be required to obtain discovery from, or call as a witness at trial, an attorney in a law firm representing another party. Again, there is no ethical standard that automatically prohibits a lawyer from taking such action. However, the subpoenaing, listing or identifying of another party's attorney, or of an attorney in another party's law firm, must not be done routinely or lightly, and doing so (whether or not combined with a motion to disqualify) solely as a contrivance to disqualify opposing counsel, can constitute a violation of the Code of Professional Responsibility.
A. DR 5-101(B): Pre-Employment Decisions as to Whether an Attorney "Ought to Be" Called as a Witness.
There is no per se ethical prohibition against an attorney being a witness on behalf of a client. Rather, the Code of Professional Responsibility limits only the ability of an attorney to serve as an advocate in the same matter in which that attorney, or another attorney in his or her firm, "ought to be called as a witness."
DR 5-101(B) requires an attorney to decline employment if:
1) the employment is as an advocate "in contemplated or pending litigation" and
2) the attorney "knows or it is obvious that he or another lawyer in his firm"
3) "ought to be called as a witness."
An attorney may not avoid withdrawal simply by deciding not to call himself or herself if the attorney's testimony is admissible, material and irreplaceable. The attorney and client are allowed some professional discretion in determining whether the attorney, or another attorney in the firm, "ought to be called as a witness." See, Pflaumer, Inc. v. Dep't of Justice, 465 F.Supp. 746, 747-48 (E.D. Pa. 1979); Miller Elec. Constr., Inc. v....
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