Is a lawyer disqualified from representing a surviving partner in litigation, and what happens if the lawyer may be a witness?

Plain-English summary

The committee responded by letter to an inquiry about whether a lawyer was disqualified from representing a surviving partner in district court litigation. It quoted the second and third paragraphs of Canon 6, which make it unprofessional to represent conflicting interests except by express consent after full disclosure and forbid later employment in matters adversely affecting an interest of the client as to which confidence has been reposed.

Predicated on the facts stated, the committee was of the opinion that no apparent conflict of interest existed, so the lawyer was not disqualified to act as attorney for the surviving partner. The committee added a caution: it might develop that the lawyer would be a necessary witness in one of the actions, in which case he could find himself in violation of Canon 19. It declined to express an opinion on that point unless the condition arose and the circumstances were presented for decision.

Currency note

This opinion was issued in 1952, decades before Oklahoma replaced its original Rules of Professional Conduct (patterned on the ABA Canons of Professional Ethics) with the Oklahoma Rules of Professional Conduct (adopted 1988) and the later Ethics 2000 revisions. Canon 6 (conflicting interests) and Canon 19 (the lawyer as witness) belong to that superseded canon-era code; the current rules on conflicts and on a lawyer serving as both advocate and witness are stated differently today. Subsequent rule amendments and 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 Treat this page as historical context, not current guidance.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: Was the lawyer disqualified from representing the surviving partner?

A: No. On the facts stated, the committee found no apparent conflict of interest under Canon 6 and concluded the lawyer was not disqualified to act for the surviving partner in the district court cases.

Q: What concern did the committee flag for later?

A: It cautioned that the lawyer might become a necessary witness in one of the actions, in which case he could be in violation of Canon 19, but it declined to opine on that unless and until those circumstances arose.

Background and rules framework

The opinion applied Canon 6 of the Canons of Professional Ethics, adopted in Oklahoma, on representing conflicting interests, and flagged Canon 19, which addressed a lawyer appearing as a witness for his client. The opinion predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• Canon 6 (ABA Canons of Professional Ethics, adopted by the Oklahoma Bar): it is unprofessional to represent conflicting interests absent consent after full disclosure.
• Canon 19: the lawyer as witness; flagged as a potential issue if the lawyer became a necessary witness.

See also

• Okla. Bar Ethics Op. 114: Will drafter as both witness and counsel at probate
• Okla. Bar Ethics Op. 154: Former claim agent representing a claimant against the former employer
• Okla. Bar Ethics Op. 8: County attorney as witness and prosecutor

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-161/

Original opinion text

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

Adopted October 8, 1952

Messrs. Carder & Carder,

Baker Building,

Hobart, Oklahoma.

Attention: Mr. Clayton Carder.

Gentlemen:

“Your letter of May 12, 1952, has been referred to the Legal Ethics and Statewide Disciplinary Action Committee of the Oklahoma Bar Association. This question is covered by Canon No. 6 of Professional Ethics. The second and third paragraph of Canon 6 is as follows:

‘It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts. Within the meaning of this canon, a lawyer represents conflicting interests when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose.

‘The obligation to represent the client with undivided fidelity and not to divulge his secrets or confidences forbids also the subsequent acceptance of retainers or employment from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed.’

Predicated upon the facts stated in your letter of May 12, the Committee is of the opinion that no apparent confliction [sic] of interests exists.

It may develop that you will be a necessary witness in one of these actions. If that fact should occur, you may find yourself in violation of Canon No. 19 of our Professional Ethics. However, we are unable to express an opinion relative to this factor unless this condition would arise and the circumstances were before us for decision.

It is, therefore, our belief that you are not disqualified to act as attorney for the surviving partner in the District Court cases.

Yours truly,

Gerald B. Klein

The above opinion was prepared by Mr. Gerald B. Klein, a member of the Committee.