103 N.J.L.J. 195
March 1, 1979
Conflict of Interest
Attorney-Likely Witness Withdrawal
The inquirer asks whether DR 5-102(A) requires a lawyer to
withdraw from a matter short of trial where he "learns or believes,
that he ought to be called as a witness," or whether he may
continue to handle the matter through the discovery process.
It is true that the rule speaks in terms of withdrawal "from the conduct of the trial" and we do not believe that it was intended to require withdrawal immediately in all cases. Reference
may be profitably made to our Opinion 233, 95 N.J.L.J. 206 (1972), and also to the ethical considerations underlying the rule, particularly EC 5-10 which reads as follows:
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.
The interests of the client are always paramount, and the attorney must assess carefully the question of when he ought to withdraw prior to trial, bearing in mind that another attorney must ultimately be substituted and that he must have a reasonable time in which to exercise his professional judgment in advising the client.