Can a lawyer who is also a party and a likely necessary witness keep representing himself and co-owners if disqualification would cause his clients substantial hardship?

Plain-English summary

The Committee addressed a lawyer who had represented owners of a mineral interest in a suit to confirm title, pursued it successfully to the Mississippi Supreme Court, and received a 40 percent mineral interest under a contingent fee arrangement. When the defendant refused to pay, the lawyer sued to enforce the judgment on behalf of the present owners, including himself. The defendant moved to disqualify him as both a plaintiff and a likely witness, and the lawyer asserted that disqualification would cause his clients substantial hardship.

The opinion concluded that, accepting the assertion of substantial hardship as true, the lawyer's continued representation of himself and the other owners would be no ethical violation, provided that in testifying he observes Rules 1.6, 1.7, and 1.9 on client confidences and conflicts. It explained that Rule 3.7 governs when a lawyer may act as advocate at a trial where he is likely to testify, and that subsection (a)(3) allows it where disqualification would work substantial hardship on the client, with the comment directing due regard to the effect of disqualification on the client. Rule 3.7(b) cautions that the lawyer may not testify if precluded by Rule 1.7 or Rule 1.9, and the lawyer must preserve client confidences under Rule 1.6.

The opinion drew support from Mississippi Ethics Opinion No. 122, which allowed a lawyer who learns he may be called as a witness to continue representation until it becomes apparent the testimony is or may be prejudicial to the client, and noted that ABA Model Rule 3.7 permits a lawyer to serve as both advocate and witness in the same circumstances. On the facts, the opinion found no ethical violation in the continued representation so long as the substantial-hardship condition is met and the lawyer preserves confidences and avoids conflicts under Rules 1.6, 1.7, and 1.9.

In practice

The opinion holds that the advocate-witness bar in Rule 3.7 yields where disqualification would impose substantial hardship on the client, as Rule 3.7(a)(3) provides. Per the opinion, that exception is not unconditional: the lawyer may not testify if Rule 1.7 or Rule 1.9 (conflicts) would preclude it, and must preserve client confidences under Rule 1.6 throughout. The opinion also notes, citing Opinion 122, that continued representation runs until the testimony becomes prejudicial to the client.

Common questions

Q: Can a lawyer who will be a witness still serve as the advocate at trial?

A: The opinion concluded yes in this case, because Rule 3.7(a)(3) allows it where disqualification would work substantial hardship on the client.

Q: Does it matter that the lawyer is also a party with a personal stake?

A: Per the opinion, the lawyer may represent himself and the co-owners, but he must still satisfy Rules 1.7 and 1.9 on conflicts and may not testify if those rules preclude it, and he must preserve client confidences under Rule 1.6.

Q: How long can the lawyer keep representing the client after learning he may testify?

A: Citing Opinion 122, the opinion explained that representation may continue until it becomes apparent that the lawyer's testimony is or may be prejudicial to the client.

Background and rules framework

The opinion interprets Mississippi Rule 3.7 (lawyer as witness), including 3.7(a)(3) and 3.7(b), together with Rules 1.6 (confidentiality), 1.7 (current-client conflicts), and 1.9 (former-client conflicts), corresponding to Model Rules 3.7, 1.6, 1.7, and 1.9. The opinion treated the substantial-hardship exception as the operative test, bounded by the conflict and confidentiality rules.

Citations and references

Rules of Professional Conduct (Mississippi; cf. Model Rules):

• MRPC 3.7, including 3.7(a)(3) and 3.7(b) (lawyer as witness) (cf. Model Rule 3.7).
• MRPC 1.6 (confidentiality of information) (cf. Model Rule 1.6).
• MRPC 1.7 (current-client conflicts) (cf. Model Rule 1.7).
• MRPC 1.9 (duties to former clients) (cf. Model Rule 1.9).

Other opinions cited:

• Mississippi Ethics Opinion No. 122: a lawyer may continue representing a client after learning he may be a witness until the testimony becomes prejudicial.
• ABA Model Rule 3.7 (referenced as consistent with the Mississippi rule).

See also

• MS Bar Ethics Op. 195: Lawyer as Witness in a Will Contest
• MS Bar Ethics Op. 242: Conflicts in Arbitration and Lawyer as Witness

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/164/
• Original PDF: https://www.msbar.org/media/1047/et_op_164-amended.pdf

Original opinion text

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

ETHICS OPINION NO. 164

OF THE MISSISSIPPI BAR

RENDERED June 23, 1989

AMENDED April 06, 2013

CONFLICT OF INTEREST - CLIENT CONFIDENCES - LAWYER AS WITNESS- An attorney who received a forty percent mineral interest in certain oil wells as a result of a contingent fee arrangement whereby the attorney agreed to represent the owners in a suit to confirm title to the interest may represent the present owners of the mineral interest, including himself, in a subsequent suit to enforce the prior judgment even though the attorney is likely to be a necessary witness provided that disqualification of the lawyer would work substantial hardship on the client.

The Ethics Committee of The Mississippi Bar has been asked to render an Opinion on the following facts:

A lawyer represented the owners of a mineral interest in oil wells in an action to confirm the plaintiff's title to the interest. After successfully pursuing the action to the Mississippi Supreme Court, the lawyer received a forty percent mineral interest in the wells pursuant to the contingent fee arrangement between the lawyer and his clients. Subsequently, when the defendant refused to pay the amount due to plaintiffs, the lawyer filed suit to enforce the judgment on behalf of the present owners of the mineral interest, including himself. Defendant thereafter filed a Motion to Disqualify the attorney on the grounds that he is a plaintiff in the action and will likely be a witness. The lawyer contends that disqualification would work substantial hardship on his clients.

The lawyer requests an ethics opinion regarding his representation of himself and his clients in the suit to enforce judgment.

Accepting as true the attorney's assertion that disqualification would work substantial hardship on his clients, the lawyers' continued representation of himself and the other owners of the mineral interest constitutes no ethical violation provided that, in the course of testifying, he observes the dictates of Rules 1.6, 1.7, and 1.9 of the Mississippi Rules of Professional Conduct regarding client confidences and conflicts of interest.

Rule 3.7 of the Mississippi Rules of Professional Conduct governs the circumstances under which a lawyer may act as an advocate at a trial in which the lawyer is likely to be called to testify. Subsection (a)(3) provides that an attorney "shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where ... disqualification of the lawyer would work substantial hardship on the client." The Comment accompanying Rule 3.7 advises that, in determining whether the lawyer should be disqualified, "due regard must be given to the effect of disqualification on the lawyer's client." Rule 3.7(b) cautions that a lawyer may not testify if precluded from doing so by Rule 1.7 or Rule 1.9, regarding conflicts of interest. Throughout, the lawyer must take care to preserve the confidences of the client as required by Rule 1.6.

Mississippi Bar Ethics opinion No. 122, instructs that a lawyer representing a client in pending litigation may continue the representation after he learns that he may be called as a witness until it is apparent that the testimony is or may be prejudicial to the client. In that opinion, the Committee found that a lawyer representing a divorced woman in a proceeding to modify a divorce decree could continue representation, despite his being subpoenaed by the defendant's lawyer to testify as to his relationship with his client, until such time as it became apparent that his testimony might be prejudicial to his client. Similarly instructive is Rule 3.7 of the American Bar Association Model Rules of Professional Conduct which provides that an attorney may act as both advocate and witness under the exact circumstances outlined in the Rules of Professional Conduct.

On the facts presented, the lawyer's continued representation of himself and his clients in the subsequent suit to enforce the prior judgment presents no ethical violation provided that the factual circumstances of potential substantial hardship on the client in the event of disqualification is met. The Committee reminds the attorney that in acting as an advocate and witness, a lawyer must preserve the confidences of his client and avoid conflicts of interest as outlined in Rules 1.6, 1.7, and 1.9 of the Mississippi Rules of Professional Conduct.