Must a foreclosure lawyer withdraw if the other side will call him to testify about the attorney fees claimed in the judgment?

Plain-English summary

A lawyer representing the mortgagee in a mortgage-foreclosure action asked whether he had to withdraw (absent a contrary court order) because the mortgagor's counsel had signaled that the lawyer would likely be called as a witness on the attorney fee to be included in any foreclosure judgment. The lawyer had received a deposition notice limited to non-privileged matters about the fees recoverable by the plaintiffs under the mortgage.

The Commission concluded withdrawal was not required. Rule 3.5(b) requires withdrawal of a lawyer who knows or should know he is likely to be a witness in litigation concerning the subject of his employment, but it does not apply where the lawyer would not be precluded from accepting employment under Rule 3.4(j). Rule 3.4(j)(1) provides that withdrawal is not required where the predictable testimony will relate solely to legal services furnished by the lawyer, and Rule 3.4(j)(2) provides that withdrawal of the entire firm is never required, so a partner of the witness-attorney may take over the trial regardless of the topics of the testimony. The Commission found the contemplated testimony related solely to legal services the lawyer or his firm had furnished or would furnish, so withdrawal appeared unnecessary; even if the testimony strayed beyond that, a partner could try the case, and withdrawal would not be required if the court ordered otherwise. It noted that because attorney fees are always a potential issue in a foreclosure, making the plaintiff's attorney a possible witness, a rule mandating withdrawal in every case would be impractical.

Currency note

This opinion was issued in 1987, 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 Treat this page as historical context, not current guidance.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: Does a lawyer have to withdraw if he will testify about the fees he is claiming?

A: The opinion concluded no; under Rule 3.4(j)(1), testimony relating solely to the legal services the lawyer furnished is an exception to the lawyer-witness withdrawal rule.

Q: What if the testimony goes beyond the lawyer's own services?

A: The opinion concluded that even then a partner of the witness-attorney may take over the trial under Rule 3.4(j)(2), and withdrawal would not be required if the court ordered otherwise.

Q: Why not require withdrawal in every fee dispute?

A: The opinion reasoned that because attorney fees are always a potential issue in a foreclosure, the plaintiff's lawyer is always a possible witness, so a rule mandating withdrawal in all cases would be impractical.

Background and rules framework

The opinion interprets former Maine Bar Rule 3.5(b) (withdrawal of a lawyer likely to be a witness) and its cross-reference to Rule 3.4(j), which sets out exceptions, including testimony relating solely to legal services furnished (3.4(j)(1)) and the rule that the whole firm need not withdraw (3.4(j)(2)). These correspond to ABA Model Rule 3.7 (lawyer as witness), including its provision that a lawyer may testify and that disqualification is not imputed to the firm in the same way.

Citations and references

Rules of Professional Conduct:

• Model Rule 3.7 (lawyer as witness)
• Maine Bar Rule 3.5(b); Rule 3.4(j)(1); Rule 3.4(j)(2)

See also

• Maine Ethics Op. 113: Lawyer-Witness and Contingent Fee Limits
• ABA Formal Op. 92-367: Examining a Client as an Adverse Witness

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=91394

Original opinion text

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

Issued by the Professional Ethics Commission

Date Issued: April 1, 1987

The Ethics Commission has been asked whether an attorney representing the mortgagee in a civil action to foreclose a mortgage must withdraw (unless the Court otherwise orders) if counsel for the mortgagor has indicated the likelihood that the inquiring attorney will be called as a witness at the trial for the purpose of being examined on the question of the attorney's fee, if any, to be included in any judgment of foreclosure. The inquiring attorney has received a notice to take his deposition, which indicates that the topics of the deposition are to be limited to non-privileged matters concerning the attorney's fees recoverable by the plaintiffs under the mortgage.

Opinion

Rule 3.5(b) of the Code of Professional Responsibility requires the withdrawal of a lawyer who knows or should know that he is likely to be called as a witness in litigation concerning the subject matter of his employment. The Rule goes on to provide, however, that it does not apply to situations in which the lawyer would not be precluded from accepting employment under Rule 3.4(j). Rule 3.4(j)(1) makes clear that withdrawal will not be required "where the predictable testimony will relate solely to . . . legal services furnished by the lawyer." Subsection 2 of subparagraph (j) of Rule 3.4 provides that withdrawal of the entire firm is not required in any event; a partner of the witness attorney may take over the trial, regardless what topics will be covered by the witness-attorney's testimony.

Insofar as such matters are predictable at all, it seems apparent that the testimony contemplated from the inquiring attorney is testimony relating solely to legal services he or his firm has furnished or will furnish. Accordingly, his withdrawal would appear not to be required. Even if the testimony strays beyond the issue of legal services, a partner of the lawyer would be free to take over the trial, and in any case withdrawal would not be required if the Court otherwise ordered. Since attorney's fees are always a potential issue in a foreclosure, the plaintiff's attorney will always be a possible witness, and a rule mandating withdrawal in all cases would therefore be impractical to say the least.