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                                         116 N.J.L.J. 243
                                        August 15, 1985


Appointed by the Supreme Court of New Jersey


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    This inquiry involves the question of whether a lawyer who has withdrawn from representation of a client at the trial level on the basis of RPC 3.7, may nonetheless, represent that client on appeal.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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