Can a lawyer represent his own law partner as a party in litigation where the partner will testify as a witness?

Plain-English summary

Attorney A was a party in a civil matter unrelated to any legal services he provided (for example, a defendant in a traffic offense, a divorce, or a contract dispute). A asked attorney B, a member of the same firm, to represent him. No firm lawyer would be a witness except A himself. The question was whether B could represent A.

The Commission concluded the Maine Bar Rules prohibit the representation. Rule 3.4(j) bars a lawyer from accepting employment in contemplated or pending litigation if he knows or should know that he, or a lawyer in his firm, is likely or ought to be a witness, subject to three exceptions (testimony solely on uncontested matters, testimony about legal services the lawyer furnished, or where the lawyer's distinctive value would make denial a substantial hardship on the client). Citing ABA Formal Opinion 339, the Commission described the rule's purpose: to avoid placing a lawyer in the unseemly position of arguing his own credibility or that of a firm lawyer, which could weaken the client's case and handicap opposing counsel in challenging the lawyer-witness.

The Commission acknowledged the argument that these risks seem absent when the lawyer-witness is himself a party (with an interest like any non-lawyer party), and that Rule 3.4(f) might offer more apt guidance. But it held that answering the question affirmatively would amount to amending the rule, which is beyond the Commission's authority. Rule 3.4(j) draws no distinction between a lawyer-witness who is a party and one who is not, and the stated facts fit none of the three exceptions. The Commission therefore concluded Rule 3.4(j) prohibits B's representation of A absent additional circumstances bringing it within an exception. In a footnote, the Commission observed that under the then-new ABA Model Rules of Professional Conduct (cf. Rule 3.7), the representation would probably be permitted.

Currency note

This opinion was issued in 1984, before Maine's replacement of the former Maine Bar Rules with the Maine Rules of Professional Conduct (effective August 1, 2009). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer represent his own partner who will be a witness in the case?

A: The opinion concluded no. Rule 3.4(j) bars accepting employment when a firm lawyer is likely to be a witness, and the partner-party here fit none of the rule's three exceptions.

Q: Does it matter that the lawyer-witness is himself the party?

A: The opinion concluded it does not change the result. Rule 3.4(j) draws no distinction between a lawyer-witness who is a party and one who is not.

Q: What are the exceptions to the lawyer-witness rule?

A: The opinion identified three: testimony solely on uncontested matters, testimony about legal services the lawyer furnished, or where the lawyer's distinctive value would make denial a substantial hardship on the client.

Q: Would the answer differ under the ABA Model Rules?

A: The opinion noted in a footnote that under the then-new ABA Model Rules (cf. Rule 3.7), the representation would probably be permitted on these facts.

Background and rules framework

The opinion interprets former Maine Bar Rule 3.4(j), the lawyer-witness disqualification provision, and references Rule 3.4(f) (the lawyer's own interest). Rule 3.4(j) corresponds to ABA Model Rule 3.7 (lawyer as witness). The opinion relies on ABA Formal Opinion 339 for the rule's rationale and notes that the result might differ under Model Rule 3.7.

Citations and references

Rules of Professional Conduct:

• Model Rule 3.7 (lawyer as witness)
• Maine Bar Rules 3.4(j), 3.4(f)

Other opinions cited:

• ABA Formal Opinion 339 (rationale for the lawyer-witness disqualification)

See also

• Maine Ethics Op. 56: Lawyer's Own Affidavit
• Maine Ethics Op. 108: Witness-Lawyer's Firm Continuing
• Maine Ethics Op. 78: Lawyer-Witness on His Own Fees

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=90984

Original opinion text

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

Issued by the Professional Ethics Commission

Date Issued: May 10, 1984

Facts

Attorney A is a party in a civil matter unrelated to the performance of any legal services (e.g., a defendant in a traffic offense, divorce proceeding or contract dispute). He has requested Attorney B who is a member of the same law firm to represent him. Neither B nor any member of the law firm will be a witness in the trial except, of course, A.

Question

Can B represent A?

Opinion

The Maine Bar Rules prohibit representation by B.

Rule 3.4(j) reads as follows:

A lawyer shall not accept employment in contemplated or pending litigation if he knows, or should know, that he or a lawyer in his firm is likely or ought to be called as a witness. This rule does not apply where the predictable testimony will relate solely to uncontested matters or to legal services furnished by the lawyer, or where the distinctive value of the lawyer or his firm in the particular case would make denial a substantial hardship on the client.

A major purpose of the Rule, as pointed out in some detail in ABA Formal Opinion 339, is to prevent a situation in which a lawyer, or a lawyer in his firm, is placed in "the unseemly position of arguing his own credibility or that of a lawyer in his firm." In such a situation, it is argued, a client's case could be weakened where a supporting witness may be subject to impeachment because of an interest in the outcome of the trial. Furthermore, it has been suggested that opposing counsel may be handicapped in challenging the credibility of the lawyer witness.

It may be argued that under the facts set forth above no such risks are present. After all, the lawyer-witness as a party has an interest in the outcome of the trial much the same as any non-lawyer party, and it may be difficult to detect unseemliness where the lawyer is arguing the credibility of his client under the above facts. Indeed one might further argue that Rule 3.4(f) would provide more appropriate guidance in determining the wisdom of such representation under these circumstances.

However, to answer the question in the affirmative would be tantamount to amending the Rule which is beyond the authority of this commission.[1] No distinction is made between the lawyer-witness who is a party and one who is not a party. The Rule permits only three exceptions: (a) where the testimony relates to uncontested matters, (b) where the testimony involves legal services furnished by the lawyer, and (c) where the distinctive value of the lawyer or his firm in a particular case would make denial a substantial hardship on the client. The facts as stated do not come within any one of these exceptions.

Thus the Commission concludes that Rule 3.4(j) prohibits employment of B by A without additional circumstances which would permit representation under one of the exceptions described therein.

Footnote

[1] It is perhaps of some interest to note that under the new ABA Model Rules of Professional Conduct, representation would probably be permitted under the facts posed by this question (c.f. Rule 3.7).