If the opposing side subpoenas a lawyer to testify, can the lawyer keep representing his client in the same case?

Plain-English summary

Lawyer A represented a divorced woman in a contempt and modification proceeding; her ex-husband cross-petitioned for custody. On the trial date the ex-husband subpoenaed Lawyer A as a witness, his counsel telling the judge the ex-husband believed Lawyer A was having an affair with the client. Lawyer A denied the allegation (the two were close friends, not in an affair). The judge asked Lawyer A to consider withdrawing but did not order it, and the client wished to keep him. Lawyer A asked whether he could continue, and whether opposing counsel breached any duty by issuing the subpoena.

On the first question, the opinion applied Rule 3.7(a), which bars a lawyer from acting as advocate at a trial in which the lawyer is likely to be a necessary witness, subject to exceptions for uncontested-issue testimony, testimony on the value of legal services, and where disqualification would cause substantial hardship. The Committee concluded Lawyer A may continue until it is apparent his testimony is or may be prejudicial to the client. The Committee said it could not investigate whether the testimony would be prejudicial and had to accept Lawyer A's statement that the affair allegation was untrue; taking that as true, it did not find the testimony apparently prejudicial. It cited ABA Formal Opinion No. 339 (1975) and Wisconsin Opinion E-82-3 (1982), and added that any doubt should be resolved in favor of the lawyer testifying and against continuing as advocate.

On the second question, the Committee declined to opine: under the Mississippi State Bar by-laws it may opine on a lawyer's past conduct only at the request of the Committee on Professional Responsibility, and this request did not come from that committee.

In practice

Under this opinion, a Mississippi lawyer whom the opposing party subpoenas as a witness mid-case may keep representing the client under Rule 3.7 until it becomes apparent the testimony is or may be prejudicial to that client. The opinion places the prejudice judgment on the lawyer (the Committee will not investigate the facts) and directs that genuine doubt be resolved in favor of testifying and withdrawing as advocate. The Committee declined to address whether opposing counsel acted improperly, citing its by-laws.

Common questions

Q: Can the other side disqualify my lawyer just by subpoenaing him?

A: Per this opinion, not automatically. The lawyer may continue under Rule 3.7 unless it becomes apparent his testimony is or may be prejudicial to his own client.

Q: Who decides whether the testimony is prejudicial?

A: The opinion says the Committee cannot investigate the facts; the lawyer must judge it, and should resolve any doubt in favor of testifying and stepping aside as advocate.

Q: Did the opinion address the opposing lawyer's conduct in issuing the subpoena?

A: No. The Committee declined, explaining it may opine on a lawyer's past conduct only at the request of the Committee on Professional Responsibility.

Background and rules framework

The opinion applies Mississippi Rule of Professional Conduct 3.7 (lawyer as witness, the analog of Model Rule 3.7), specifically Rule 3.7(a) and its three exceptions (uncontested issue, value of legal services, substantial hardship). It treats ABA Formal Opinion 339 and Wisconsin Opinion E-82-3 as persuasive authority for allowing continued representation until prejudice becomes apparent.

Citations and references

Rules of Professional Conduct:

• Model Rule 3.7 / Mississippi Rule 3.7: lawyer as witness (Rule 3.7(a) and its exceptions).

Other opinions cited:

• ABA Formal Opinion No. 339 (January 31, 1975), on the advocate-witness rule.
• State Bar of Wisconsin Opinion No. E-82-3 (August 1982): a lawyer called to testify by the opponent may continue representation unless the testimony becomes prejudicial to the client.

See also

• MS Bar Ethics Op. 164: Lawyer-Party as Witness
• MS Bar Ethics Op. 195: Lawyer as Witness
• MS Bar Ethics Op. 242: Conflicts in Arbitration

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/122/
• Original PDF: https://www.msbar.org/media/1030/et_op_122-amended.pdf

Original opinion text

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

ETHICS OPINION NO. 122

OF THE MISSISSIPPI BAR

RENDERED September 05, 1986

AMENDED April 06, 2013

LAWYER AS WITNESS - A lawyer representing a client in pending litigation may continue the representation after he learns or it is obvious that he or a lawyer in his firm may be called as a witness on behalf of the adverse party unless it is apparent that the testimony is or may be prejudicial to the client.

The Ethics Committee of The Mississippi Bar has been asked to render its opinion on the following situation:

Lawyer A represents a divorced woman and has filed on her behalf a Petition for Citation for Contempt and Modification of Former Decree in the court of appropriate jurisdiction. The client's ex-husband and natural father of their two children, of whom Lawyer A's client has custody, filed a cross-petition for custody. On the day set for trial of the petition and cross-petition, Lawyer A was subpoenaed as a witness for the ex-husband. The lawyer for the ex-husband explained to the trial judge that the ex-husband believed that Lawyer A was having an affair with his client. Lawyer A denies this allegation. Lawyer A and his client are close personal friends but are not having an illicit affair. At an in chambers conference, the judge requested that Lawyer A consider withdrawing from the case in view of his personal relationship with his client. However, the judge did not order Lawyer A to withdraw and continued the hearing. Lawyer A's client desires to retain Lawyer A as her attorney.

Based on these facts, Lawyer A requests an ethics opinion addressing two questions. (1) May Lawyer A ethically continue representation of his client? (2) Did the opposing attorney breach any ethical duty in issuing or aiding in the issuance of a subpoena for Lawyer A?

Because he is already employed in pending litigation and it is the opponent who may call him as a witness, Lawyer A's ethical dilemma is governed by Rule 3.7(a) of Mississippi Rules of Professional Conduct (MRPC) which states in full:

A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:

(1) the testimony relates to an uncontested issue;

(2) the testimony relates to the nature and value of legal services rendered in the case; or

(3) disqualification of the lawyer would work substantial hardship on the client.

On these facts, Lawyer A may continue the representation until it is apparent that his testimony is or may be prejudicial to his client. The Committee is not empowered to investigate whether this proposed testimony would be prejudicial to the client. The Committee must accept as true Lawyer A's statement that the allegation that he has had or is having an affair with his client is untrue. Taking that statement as true, the Committee does not believe it is apparent that Lawyer A's testimony is or prejudicial to his client. Accordingly, the Committee is of the opinion that Lawyer A may continue the representation until it does become apparent that his testimony is or may be prejudicial to his client. See generally ABA Formal Opinion No. 339 (Jan. 31, 1975); State Bar of Wisconsin Opinion No. E-82-3 (Aug. 1982) (in action by city against former city employee where adverse attorney calls city attorney to testify, city attorney may continue representation of city unless it becomes apparent that his testimony will be prejudicial to the city). The Committee notes that if Lawyer A has any doubts about whether his testimony is or may be prejudicial to his client, such doubts should be resolved in favor of the lawyer testifying and against his becoming or continuing as an advocate.

The Committee may not render an opinion as to the second question concerning the ethical propriety of the conduct of the lawyer representing the adverse party. The by-laws of the Mississippi State Bar provide that the Committee may render an opinion on the past conduct of a lawyer only at the request of the Committee on Professional Responsibility. Since this request is not from the Committee on Professional Responsibility, this Committee may not render an opinion on the second question.