I drafted the note and mortgage for a real estate sale, and now the buyers want me to represent them in a lawsuit claiming the purchase price on the settlement sheet was false. Can I take the case?

Plain-English summary

The inquiring attorney had prepared a promissory note and mortgage papers to effectuate a real estate sale from Mr. A's sister to Mr. A's daughter, Ms. B, and her fiance, Mr. C. At the closing, the note and mortgage were signed and a settlement sheet was prepared, and Ms. B and Mr. C certified that the figures on the settlement sheet were true and accurate. After the engagement ended, Mr. C filed an action alleging that the purchase price shown on the settlement sheet was not the true purchase price. Mr. A and Ms. B asked the inquiring attorney to represent them in that action.

The panel took the position that the situation is governed by Rhode Island Rule of Professional Conduct 3.7, which provides that a lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness, subject to three exceptions (uncontested-issue testimony, testimony about the nature and value of legal services, or substantial hardship to the client from disqualification).

The panel concluded that the lawyer cannot represent Mr. A and Ms. B in the action because the attorney has knowledge that pertains to a material issue and therefore may be called as a witness in the action.

Currency note

This opinion was issued in 1991, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 3.7 as originally adopted. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process, which renumbered and amended several provisions. 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 Treat this page as historical context, not current guidance.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 mentioned here.

Common questions

Q: Can I litigate a dispute over a transaction whose documents I drafted?

A: Under this opinion, not where you would be a likely necessary witness. The panel applied Rule 3.7 and found the attorney could not serve as advocate because the attorney had knowledge pertaining to a material issue in the case.

Q: What made the attorney a likely witness here?

A: The attorney prepared the note, mortgage, and settlement documents, and the lawsuit put the truth of the purchase price on the settlement sheet directly in issue, so the attorney's knowledge pertained to a material issue.

Q: Do the exceptions in Rule 3.7 help?

A: The panel did not find them applicable. The disputed purchase price was a contested material issue, not an uncontested issue or a question about the value of legal services.

Background and rules framework

The opinion applies Rule 3.7 (Lawyer as Witness), corresponding to Model Rule 3.7. The rule bars a lawyer from acting as advocate at a trial in which the lawyer is likely to be a necessary witness, except where the testimony relates to an uncontested issue, relates to the nature and value of legal services rendered in the case, or where disqualification would work substantial hardship on the client. The panel resolved the inquiry by finding the attorney's knowledge pertained to a material, contested issue.

Citations and references

Rules of Professional Conduct:

• MR 3.7 (lawyer as witness)
• RI RPC 3.7

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Op. 91-10: Testifying About a Former Client
• RI EAP Op. 91-33: No Conflict When a Former Client May Testify Against a Current Client

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2091-31.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

Digest of Ethics Advisory Panel
Opinion #91-31, Request #144
Issued May 23, 1991

An attorney seeks Panel advice as to whether the attorney may properly represent two clients, Mr. A and Ms. B under the following circumstances:

The attorney was contacted by Mr. A who requested the attorney prepare some real estate documents in order to effectuate a sale of some real estate from Mr. A's sister to Mr. A's daughter, Ms. B and her fiance, Mr. C. The attorney prepared a promissory note and mortgage papers. Copies of all documents were given to Mr. C by Mr. A so that Mr. C could review them with Mr. C's attorney.

The closing took place. At the closing, the note and the mortgage were signed and the settlement sheet was prepared. Ms. B and Mr. C signed a certification that the figures on the settlement sheet were true and accurate.

Subsequently, Ms. B and Mr. C, who were engaged to be married, ended their engagement. A dispute arose between them as to what to do with the real estate they purchased jointly.

Mr. C filed an action in which he has alleged that the purchase price shown on the settlement sheet was not the true purchase price. Mr. A and Ms. B have requested that the inquiring attorney represent them in this action.

The Panel takes the position that the instant fact situation is governed by Rhode Island Rule of Professional Conduct 3.7, which provides in pertinent part:

Rule 3.7 Lawyer as witness

(a) 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.

The Panel is of the opinion that the lawyer cannot represent Mr. A and Ms. B in this action because the attorney has knowledge which pertains to a material issue and, therefore, may be called as a witness in this action.

Ethics Advisory Panel advice is protective in nature. There is no requirement that an attorney abide by a Panel opinion, but if he or she does, he or she is fully protected from any charge of impropriety.