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116 N.J.L.J. 243
August 15, 1985
ADVISORY COMMITTEE ON PROFESSIONAL ETHICS
Appointed by the Supreme Court of New Jersey
OPINION 566
Appellate Representation
of Client whom Lawyer
could not Represent at Trial
This inquiry involves the question of whether a lawyer who has
withdrawn from representation of a client at the trial level on the
basis of RPC 3.7, may nonetheless, represent that client on appeal.
Inquirer is the present husband of a plaintiff in post-divorce
matrimonial proceedings. Such proceedings originally involved
issues, including support, child visitation rights, and religious
practice relative to the child. At the trial level, at the
suggestion of the Court, inquirer withdrew as his wife's attorney
on the basis of RPC 3.7 because it was then contemplated that he
would be a witness with respect to the visitation and religious
issues. Another attorney was substituted.
Contrary to inquirer's original anticipation, he did not
appear as a witness at the trial because the visitation and
religious issues had been disposed of prior to trial.
The defendant has now appealed the Court's ruling with respect
to support, and we assume that this will be the only issue either
before the Appellate Division or upon any retrial. His testimony
was never anticipated to be required or relevant with respect to
this issue.
On the basis of these facts, we do not find any impropriety in
inquirer's representing his wife on the appeal.
The express language of RPC 3.7(a) (as well as the sense of
former Disciplinary Rule DR 5-1O1B and 5-102) relates to the
impropriety in most cases of a lawyer acting "as advocate at a
trial" where the lawyer is an actual or prospective witness.
Our opinion is, however, narrowly confined to the facts of
this case where a lawyer has not, in fact, been a witness at the
trial, nor is it anticipated that he would be a witness in
subsequent proceedings. It should not be construed as either
approving or disapproving of an attorney acting as advocate on an
appeal where he has been a witness at the trial, or where it is
anticipated that he will be a witness at subsequent proceedings. In
such event, there would have to be considered the effect of a
lawyer placing himself in a position where either he or his
adversary might argue or comment upon such matters as the
credibility of the advocate as witness or the weight or other
effect to be given his testimony. Such issues, however, are not
before us and are not decided here.
We think that prior decisions on this subject under the former
Disciplinary Rules; e.g. Opinions 233, 95 N.J.L.J. 206 (1972) and
421, 103 N.J.L.J. 195 (1979), are still valid and instructive in
this area under RPC 3.7.
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