Can a lawyer represent an associate in the associate's own lawsuit when the associate will testify about disputed facts?

Currency note

This opinion was issued in 1983, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility. 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 Treat this page as historical context, not current guidance.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.

Plain-English summary

The Board considered whether an attorney could represent an associate attorney in a litigated matter when the associate would be a witness on his own behalf regarding disputed substantive matters.

The opinion explained that Disciplinary Rule 5-101(B) generally prohibits, with exceptions, an attorney from accepting employment if he or an attorney in his firm should necessarily be a witness, because the dual role of witness and advocate gives the appearance that the advocate's zeal will influence his testimony. It distinguished Formal Ethics Opinion 81-F-19, which barred an attorney from representing a partner who was a conservator and would testify that a firm employee had forged the attorney's signature on conservatorship checks; there, the matter touched the firm's professional conduct. Here, by contrast, no independent client's interests were at issue, the litigation did not involve anyone's professional conduct, and the matter concerned the associate's private interests in a non-law-related business venture.

The opinion concluded that combining the roles of advocate and witness among the associates would not prejudice the opposing party or create a conflict between the attorney and the client-associate, and that DR 5-101(B) was not intended to apply where the attorney is a party and necessarily a witness on substantive matters, since any party may appear pro se, be a witness, and represent himself, and an attorney-litigant does not forfeit the right to testify in his own behalf because of his profession. There is therefore no impropriety in an attorney representing an associate in litigation over the associate's private and personal interests unrelated to his professional interests.

Common questions

Q: Can a lawyer represent an associate who will testify in his own lawsuit?

A: Yes, where the case is the associate's private matter. The opinion found "no impropriety in an attorney representing an associate in litigation involving the private and personal interests of the associate that are unrelated to his professional interests as an attorney."

Q: Why doesn't the lawyer-as-witness rule bar it?

A: The opinion held DR 5-101(B) "was not intended to apply where the attorney is a party and necessarily a witness as to substantive matters," because "any party may appear pro se, be a witness and represent himself," and an attorney-litigant "does not forfeit his right to testify in his own behalf simply because of his profession."

Q: How is this different from Opinion 81-F-19?

A: The opinion distinguished 81-F-19, where the litigation touched the firm's professional conduct (alleged forgery of conservatorship checks by a firm employee); here, the matter was the associate's private, non-law-related business and did not involve anyone's professional conduct.

Background and rules framework

The opinion applied Disciplinary Rule 5-101(B) (the lawyer-as-witness rule) of the Tennessee Code of Professional Responsibility and distinguished Formal Ethics Opinion 81-F-19. The modern correlate is Model Rule 3.7 (lawyer as witness), noted here as a navigational cross-reference rather than a rule the opinion itself applied.

Citations and references

Rules of Professional Conduct:

• DR 5-101(B) (lawyer as witness), Tennessee Code of Professional Responsibility
• Model Rule 3.7 (lawyer as witness), modern correlate

Other opinions cited:

• Tennessee Formal Ethics Opinion 81-F-19, lawyer-as-witness bar where the litigation touched the firm's professional conduct

See also

• Tennessee Op. 81-F-19: Lawyer-Conservator Suing a Bank as a Necessary Witness
• Tennessee Op. 83-F-54: Lawyer Who Witnessed a Will Defending It in a Will Contest
• Ala. Op. 1991-19: Lawyer as a Witness Under Rule 3.7
• Ariz. Op. 85-04: Attorney as Client and Witness

Source

• Landing page: https://www.tbpr.org/ethic_opinions/83-f-43

Original opinion text

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

83-F-43 - Representation of associate

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 83-F-43

Inquiry is made concerning the propriety of an attorney representing an associate attorney in a litigated matter when the associate attorney will be a witness in his own behalf regarding substantive matters that are in dispute.

Disciplinary Rule 5-101(B) of the Code of Professional Responsibility prohibits, with certain exceptions, an attorney from accepting employment on behalf of a client if he or an attorney in his firm should necessarily be a witness in the matter. The reason for the prohibition rests, to a large extent, on the fact that the dual role of witness and advocate gives the appearance that the attorney's zeal as an advocate will influence his testimony as a witness.

Tennessee Formal Ethics Opinion 81-F-19 held that an attorney could not represent a partner in his law firm in litigation when the partner was conservator for a ward and would be called as a witness to testify that an employee of the law firm forged the attorney's signature to checks drawn on the conservatorship account and thereby misappropriated funds of the ward.

The interests of an independent client are not at issue in the instant inquiry and the litigation in no way involves the professional conduct of anyone in the law firm. The litigated matter involves the private interests of the associate attorney in a business venture which is not law related.

It does not appear that combining the roles of advocate and witness among the associates will prejudice the opposing party or involve a conflict of interest between the attorney and the client-associate.

Disciplinary Rule 5-101(B) was not intended to apply where the attorney is a party and necessarily a witness as to substantive matters as described herein, for any party may appear pro se, be a witness and represent himself. The attorney, as litigant, does not forfeit his right to testify in his own behalf simply because of his profession. Therefore, there is no impropriety in an attorney representing an associate in litigation involving the private and personal interests of the associate that are unrelated to his professional

interests as an attorney.

This 14th day of April, 1983.

ETHICS COMMITTEE:

F. Evans Harvill

Oscar B. Hofstetter, Jr.

William R. Willis

APPROVED AND ADOPTED BY THE BOARD