If a lawyer realizes shortly before trial that he must testify for his client, can he keep representing the client after testifying?

Plain-English summary

The inquiry described a rescission suit in which defense counsel, after his client's opponent gave a deposition contradicting counsel's recollection of an earlier conversation, realized he would probably have to testify at trial about the date and substance of that conversation. Counsel tried to obtain a postponement; the plaintiff successfully resisted it. Counsel then testified on that limited point (not on the main rescission issue, which he knew nothing about) and continued to represent the defendant through the end of trial. The question was whether continuing the representation after learning he would testify, and after testifying, was unethical.

A majority of the Committee concluded it was not, on these facts (5-3). It reasoned that the lawyer did not know he would have to testify when he accepted the case, the necessity arose shortly before the case went to trial on its merits, the lawyer was familiar with the case, the defendant probably lacked funds to readily secure other counsel, and a postponement could not be obtained. Under these circumstances, the Committee said the term "during the trial" in Canon 16 should be given a liberal construction to embrace procedure preliminary to the actual trial.

The Committee expressly recognized that American (ABA) Canon 19 is much stricter than Texas Canon 16, and that under the American Ethics Committee's opinions (especially No. 50) there would be a clear violation on the same facts.

Currency note

This opinion was issued in 1957, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. 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 Treat this page as historical context, not current guidance.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.

Common questions

Q: Could a lawyer who realized he had to testify keep representing his client?

A: The Committee concluded that on these facts he could, because he did not foresee the need to testify when he took the case and the necessity arose only shortly before trial after a postponement was refused (5-3).

Q: What did Texas Canon 16 say about a lawyer testifying?

A: Canon 16 made it unethical to accept a case knowing one would be a material witness, but allowed a lawyer to testify without misconduct if the necessity arose "during the trial." The Committee read "during the trial" liberally to include the preliminary procedure here.

Q: Would the American (ABA) canons have reached the same result?

A: No. The Committee expressly noted that American Canon 19 is much stricter and that under the American Ethics Committee's opinions, especially No. 50, the same conduct would be a clear violation.

Background and rules framework

The opinion interprets former Texas Canon 16, which barred accepting a case while knowing one would be a material witness but permitted testifying when the necessity arose during the trial. The modern analog is ABA Model Rule 3.7 (lawyer as witness), which generally disqualifies a lawyer from acting as advocate at a trial in which the lawyer is likely to be a necessary witness, subject to enumerated exceptions.

Citations and references

Rules of Professional Conduct:

• MR 3.7 (lawyer as witness), as the modern analog
• Texas Canon 16 (former canon on a lawyer appearing as a witness)

Other opinions cited:

• American (ABA) Canon 19 and American Ethics Committee Opinion 50: a stricter approach under which the same conduct would be a violation

See also

• TX Ethics Op. 208: Continuing Counsel Who Becomes a Witness
• TX Ethics Op. 234: Trying a Case With a Partner-Witness

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-157/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_157.pdf

Original opinion text

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

QUESTION PRESENTED

A suit was filed in the latter part of December, in which the Defendant filed a cross-action for rescission of the sale of real estate on the grounds of certain alleged misrepresentations. Plaintiff had the case set for trial on the following February 18th. Attorney for Defendant had a conversation with Plaintiff at the time the sale was consummated the previous August. Plaintiff's deposition was taken on January 9th. At that time Plaintiff testified contrary to the belief of Defendant's Attorney as to the date and substance of said August conversation. At the time Defendant's attorney accepted employment he had no reason to think Plaintiff would deny the substance of such conversation but considered the matter had been so fully discussed that the facts were beyond dispute. After the deposition was taken, Defendant's attorney realized he would probably have to testify at the trial and endeavored to secure a postponement, but such postponement was successfully resisted by Plaintiff. On the trial, Defendant's attorney did testify to the substance and date of such conversation, but did not testify concerning the main issue of the rescission action, namely, the alleged misrepresentations, as to which he had no knowledge. Said attorney continued to represent Defendant to the final termination of the trial.

Was it unethical for said attorney to continue to represent Defendant after he learned he would have to testify on the trial, and after he had testified?

18 Baylor L. Rev. 262 (1966)

APPEARANCE OF AN ATTORNEY AS WITNESS FOR HIS CLIENT
Where an attorney realizes shortly before trial that it will probably be necessary for him to become a witness and his attempts for postponement fail, it is not improper for him to continue to represent his client thereafter, nor after he testifies, in situations where the necessity arises during the procedure preliminary to the actual trial, provided he did not know such would be the case at the time he accepted the employment. Under the circumstances, the preliminary procedure is considered as part of the trial.

Canon 16.

Texas Canon 16 reads: "It shall be unethical for a member to accept a case when he knows that he will be a material witness, but a member may testify to any matter without being guilty of misconduct if the necessity therefor is occasioned during the trial of the case" (emphasis added).

A majority of the committee members feel that since said attorney did not know he would have to testify when he accepted the case and the necessity arose shortly before the case actually went to trial on its meets. and the attorney handling the case was familiar with it, and the Defendant probably lacked funds with which to readily secure other counsel, and a postponement of the case could not be secured, he was not in violation of Canon 16, under the particular facts of this case, and that, under these circumstances, the term "during the trial" should be given a liberal construction so as to embrace procedure preliminary to the actual trial.

It was recognized by all the members that American Canon 19 is much stricter than Texas Canon 16, and that under the opinions (especially No. 50) of the American Ethics Committee there would be a clear violation in the instant case. (5-3)

Tex. Comm. On Professional Ethics, Op. 157 (1957)