If a lawyer will be a witness whose testimony is central to a case, can the lawyer's partner represent the clients in that same case?

Plain-English summary

The committee considered a criminal proceeding against X and Y in which their attorney A would be called to testify about the legal advice and actions he had taken for them, with the trial judge having already indicated that A's testimony would constitute a complete defense, and with no dispute expected about the advice given. The question was whether A's partner, attorney B, could represent X and Y given DR 5-101(B). The committee answered no.

Working through the DR 5-101(B) exceptions, the committee found none applied. It could not assume the testimony would relate solely to an uncontested matter; the fact that the testimony would be a complete defense indicated it might well be contested and was not a mere formality. The testimony did not relate solely to the nature and value of legal services, and there was no indication the clients would suffer substantial hardship if represented by someone other than A or B. Because the anticipated testimony fell outside the exceptions, DR 5-101(B) and DR 5-102(A) applied, and under DR 5-102(A) the prohibition extended to B as A's partner. The committee concluded that the potential problems for X and Y and for opposing counsel required B to decline the employment if A was to testify.

Currency note

This opinion was issued in 1977 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer's partner take the case when the lawyer will be a witness?

A: Under this opinion, no, where the lawyer's testimony is material and likely contested and no DR 5-101(B) exception applies; DR 5-102(A) extends the disqualification to the partner.

Q: Why didn't the exceptions save the representation?

A: The committee found the testimony was not solely about an uncontested matter, a formality, or the value of legal services, and that the clients would not face substantial hardship using another lawyer, so none of the DR 5-101(B) exceptions applied.

Q: Did it matter that the testimony would be a complete defense?

A: Yes. The committee reasoned that testimony amounting to a complete defense tended to show it might be contested rather than uncontested, which cut against the exceptions.

Background and rules framework

The opinion applies DR 5-101(B) and DR 5-102(A) of the former Code, which addressed a lawyer's withdrawal when the lawyer ought to testify and the imputation of that bar to the lawyer's partners, together with EC 5-9 and EC 5-10. The modern analog is Model Rule 3.7 (lawyer as witness), whose imputation provision (Rule 3.7(b)) is narrower than the former DR 5-102.

Citations and references

Rules of Professional Conduct:

• DR 5-101(B), DR 5-102(A); EC 5-9, EC 5-10; modern analog Model Rule 3.7

See also

• KBA Ethics Op. E-232: Will Drafter as Witness
• KBA Ethics Op. E-321: Arguing One's Own Ineffective Assistance

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-177.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-177
Issued: November 1977

This opinion was decided under the Code of Professional Responsibility, which was in effect from 1971 to 1990. Lawyers should consult the current version of the Rules of Professional Conduct and Comments, SCR 3.130 (available at http://www.kybar.org), before relying on this opinion.

Question:

May attorney B, who is A’s partner, represent X and Y in a criminal proceeding initiated by their bookkeeper where attorney A will be called to testify concerning the legal advice and legal actions which he took on behalf of X and Y, considering the provisions of DR 5-101(B)(1), (2), (3), or (4)? The judge trying the case has already indicated before the instant issue was raised that attorney A’s testimony would constitute an absolute defense to the criminal charges. There will be no dispute as to the legal advice rendered by attorney A to X and Y.

Answer:

No.

References:

EC 5-9, 5-10; DR 5-101, 5-102
OPINION

The facts set forth in the question presented indicate that attorney A will be called as witness on behalf of his clients in connection with an issue of great importance to the case in that his testimony will constitute a complete defense to the charges against them. The Committee is of the opinion that the provisions of DR 5-101(B) and 5-102(A) apply and that the anticipated testimony of attorney A will not fall under any of the exceptions enumerated in DR 5-101(B). Under DR 5-102(A) the prohibition against representation of the client would extend to attorney B who is A’s partner.

In reaching this conclusion, we have considered the exceptions set forth in DR 5-101(B). On the basis of the facts outlined, we are unable to assume that the testimony of attorney A will relate solely to an uncontested matter. The fact that it will constitute a complete defense tends to indicate that it might well be contested and also that it will not relate solely to a matter of mere formality. The offered testimony will not relate solely to the nature and value of the legal services rendered and there is no indication that the clients will suffer any substantial hardship if they are represented by any attorney other than B or his partner A.

Unless the situation falls under one of the exceptions, we believe that the potential problems that may be created for X and Y and for opposing counsel require that attorney B decline this employment if his partner A is to testify.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). The Rule provides that formal opinions are advisory only.