Rutgers School of Law, OAL case ACPE233

95 N.J.L.J. 206
March 9, 1972

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the New Jersey Supreme Court

OPINION 233

Attorney - Witness for Client

    This inquiry concerns the application of DR 5-102 of the Disciplinary Rules of the Code of Professional Responsibility of the American Bar Association, which became effective September 13, 1971. Subdivision (A) of that rule provides as follows:
        If, after undertaking employment in contemplated or pending litigation, a lawyer learns or believes 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 in the representation and he or a lawyer in his firm may testify in the circumstances enumerated in DR 5-lOl(B)(l) through (4).

    The particular subdivision of DR 5-101(B) involved in this

matter is subdivision (4). That subdivision reads as follows:

As to any matter, if 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 case.

The factual matrix out of which the inquiry arises may be

summarized as follows:

Some years ago, A and B became involved in a commercial dispute. There was some litigation and, ultimately, a settlement was negotiated. Thereafter, A died, and recently a declaratory judgment action has been instituted by A's administratrix apparently to resolve a present dispute between A's estate and B over the rights and duties created by the settlement.

        B is represented by the same law firm that represented him throughout the original controversy. A's administratrix is represented by a firm which did not represent A himself during the original controversy.

        We are asked to assume that it is likely that the particular partner of the firm who had participated in the settlement negotiations on behalf of B may be required to testify as a witness in the declaratory judgment action. We are further asked to assume that the partner in the firm presently representing A's administratrix may have to be a witness concerning conversations he had subsequently to the settlement of the original controversy. The inquirer requests that this committee delineate the effect of the adoption of DR 5- 102(A) upon these circumstances, giving due regard to the fact that Canons of Professional Ethics, Canon 19 was in effect until September 13, 1971 and that the declaratory judgment action was commenced prior to that date.

    In order to serve a useful purpose in responding to this inquiry, we must make the further assumption that the subject matter of testimony by both attorneys in the declaratory judgment action would be as to matters of substance, and not as to mere formalities, and that such testimony would be both relevant and material to the substantive issues projected in that case.
    Now, the inquirer suggests that the practice in New Jersey under Cannon 19 in similar situations had been that the partner in the firm whose testimony would be required could obviate any ethical problem by entrusting the actual conduct of the case to another partner in the firm. That was not the practice, and if such a practice existed, it was and remains improper both under Canon 19 and DR 5-102(A), unless within the exceptions provided in DR 5- 101(B). We are asked only to consider subsection (4) of that rule which would permit the dual role where to do otherwise "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 inquirer suggests, and we agree, that the standard for this exception lacks objectivity. However, we are not able to discern any circumstances in the facts given to us which suggest that the declaratory judgment case could not be handled by any competent lawyer. If this be so, it is appropriate for both firms to withdraw.
    We find no merit in the suggestion that the explicit standards prescribed by DR 5-102(A) were not included within the more general language of Canon 19. This is readily demonstrated by reference to A.B.A. Comm. on Professional Ethics and Grievances, Opinions 33 (1931), 50 (1931), 185 (1938) and particularly 220 (1941). More recently, in A.B.A. Comm. on Professional Ethics, Informal Opinion 396 (1961), the Committee, after reviewing the earlier opinions, said:
        In August 1947, in Opinion 103, the Committee on Professional and Judicial Ethics of the State Bar of Michigan found that a lawyer may not act as attorney for the proponent of a will where a contest develops, and he knows, or has reason to believe that his testimony will be essential to a client's case. The Committee said in part: "Under such circumstances, the lawyer would find it difficult to disassociate his relations to the client as a lawyer from his relations to the litigant as a witness. Also the public might misunderstand such a dual relationship, and the lawyer should avoid any relationship which may appear to be improper.”

        The Committee as presently constituted approves the language of Opinion 103 of the Committee on Professional and Judicial Ethics of the State Bar of Michigan. In this connection it seems to our Committee that if a lawyer appears as a material witness, where he or his firm are attempting to sustain the will, his testimony might be subject to question and might not carry as much weight as if he had no financial interest in sustaining the will; and that if his testimony in connection with the will is material he owes a continuing duty to his former client, the testator, not to place himself in a position where his testimony might not carry full weight. We, therefore, conclude:

    1.    It would be improper for the law firm, a partner in which drew the will and in which both the witnesses and the executor are partners, to represent the proponent in the will contest, if the firm knows, or has reason to believe from the nature of the contest, that the testimony of any of the partners will be of a material nature in sustaining the will; but it would not be improper, if the testimony related to purely formal matters, permitted by Canon 19, or related to matters not involved in the contest.

    Note that the Committee in 1961 postulated that "the firm knows, or has reason to believe" that the testimony will be of a material nature. (emphasis added) This is particularly interesting because the New Jersey Supreme Court, in adopting and promulgating DR 5-102 did not adopt the final A.B.A. Code language. Under the A.B.A. version, the test would be whether the firm learns or "it is obvious." The New Jersey version turns upon whether the firm learns "or believes." (emphasis added).
    No doubt this change was adopted in order to protect the lawyer who, through inadvertence, is surprised at a late stage of the case, perhaps even during trial to suddenly realize that his testimony is essential. We make this observation for the sake of rendering a comprehensive opinion although it seems clear that both firms here involved presently "believe" that the testimony of a partner will be material.
    Consideration should also be given to the "Ethical Considerations" underlying the rule in question as adopted by the American Bar Association in its Code of Professional Responsibility. We quote in full EC 5-9 and EC 5-10 in this connection:
        EC 5-9. Occasionally a lawyer is called upon to decide in a particular case whether he will be a witness or an advocate. If a lawyer is both counsel and witness, he becomes more easily impeachable for interest and thus may be a less effective witness. Conversely, the opposing counsel may be handicapped in challenging the credibility of the lawyer when the lawyer also appears as an advocate in the case. An advocate who becomes a witness is in the unseemly and ineffective position of arguing his own credibility. The roles of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the cause of another, while that of a witness is to state facts objectively.

        EC 5-10. Problems incident to the lawyer-witness relationship arise at different stages; they relate either to whether a lawyer should accept employment or should withdraw from employment. Regardless of when the problem arises, his decision is to be governed by the same basic considerations. It is not objectionable for a lawyer who is a potential witness to be an advocate if it is unlikely that he will be called as a witness because his testimony would be merely cumulative or if his testimony will relate only to an uncontested issue. In the exceptional situation where it will be manifestly unfair to the client for the lawyer to refuse employment or to withdraw when he will likely be a witness on a contested issue, he may serve as advocate even though he may be a witness. In making such decision, he should determine the personal or financial sacrifice of the client that may result from his refusal of employment or withdrawal therefrom, the materiality of his testimony, and the effectiveness of his representation in view of his personal involvement. In weighing these factors, it should be clear that refusal or withdrawal will impose an unreasonable hardship upon the client before the lawyer accepts or continues the employment. Where the question arises, doubts should be resolved in favor of the lawyer testifying and against his becoming or continuing as an advocate.

    It seems to us that EC 5-10 helps to refine the very general language of the exception set forth in DR 5-101(B)(4) to which we have adverted.
    Finally, reference may be made to judicial expressions upon the subject in Schwartz v. Wenger, 267 Minn. 40, 43-44, 124 N.W.2d 489, 492 (1963), and in Erwin M Jennings Co. v. DiGenova, 107 Conn. 491, 499, 141 A. 866 (1928). In the latter case, the court said:
            The great weight of authority in this country holds that the attorney who acts as counsel and witness, in behalf of his client, in the same cause on a material matter, not of a merely female character, and not in an emergency, but having knowledge that he would be required to be a witness in ample time to have secured other counsel and given up his service in the case, violates a highly important provision of the Code of Ethics and a rule of professional conduct, but does not commit a legal error in so testifying, as a result of which a new trial will be granted. Id. at 869.

    As we have indicated, for these reasons we conclude that upon these facts, and subject to the existence of other facts that would bring either firm within the exception of DR 5-101(B)(4), both firms ought to withdraw and, for the guidance of the bar, we specifically hold that the same result would have been reached by this Committee under Canon 19.

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