If a lawyer accepts a case and only later turns out to be a material witness on a disputed fact, may his firm still try the case?

Plain-English summary

A regular client of an eleven-member law firm had products in storage that were damaged by what the client asserted was a negligent discharge of corrosive acids from an adjoining chemical plant. The client made a claim, which went to the chemical company's insurer, and the client's own letter proposed a settlement formula. When the insurer's response was delayed, the client turned the matter over to the firm, and one member negotiated further with the insurer. No settlement resulted, and suit was filed pleading, in one count, a contract to settle with the insurer on the proposed formula and, in the alternative, negligence by the chemical company. Other members of the firm were handling the case. The insurer answered with a general denial and a plea of the statute of frauds, so if its representative did not corroborate the settlement allegations, the lawyer who had conducted the negotiations would have to testify as a material witness supporting the contract count. The inquiry asked whether, assuming that lawyer appeared only as a witness, the firm's other members could ethically try the case.

The Committee held they could (9-0). It reasoned the attorney accepted the employment before any indication he might be a witness, and even then it was uncertain he would have to testify; if he did, it would be because of a dispute over settlement negotiations he had undertaken as part of his employment, and a dispute arising after he accepted the employment should not disqualify him from continuing it. The Committee noted the inquiry indicated the attorney would leave the trial to his partners if he had to testify, even though he was not disqualified under Texas Canon 16. That course had been suggested by ABA Opinion 220 (a lawyer disqualified under ABA Canon 19 may leave the trial to his partners) and was recommended as aiding the Bar's public relations, though under the Texas Canon it was not required, and the lawyer himself could try the case if the necessity to testify arose during trial (broadly interpreted).

Currency note

This opinion was issued in 1960, 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 Treat this page as historical context, not current guidance.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: If a lawyer unexpectedly becomes a material witness, must he withdraw?

A: Under this opinion, no. The Committee held that where the lawyer accepted employment without knowing he would be a witness and a dispute later arose about facts he might testify to, it is not a violation of the Canons for him to continue with the employment.

Q: Can the lawyer's partners try the case while he testifies?

A: Yes. The Committee held the firm's other members could ethically try the case, with the lawyer appearing as a witness and not otherwise participating.

Q: Was the lawyer required to hand the trial to his partners?

A: No. The Committee said that although that course (suggested by ABA Opinion 220) was recommended to aid the Bar's public relations, Texas Canon 16 did not require it, and the lawyer could try the case himself if the need to testify arose during trial.

Background and rules framework

The opinion interprets former Texas Canon 16, on a lawyer appearing as a witness for a client, as applied to a lawyer who became a potential material witness on a disputed settlement after accepting the case. The Committee cited ABA Opinion 220 and ABA Canon 19. The modern analog is ABA Model Rule 3.7 (lawyer as witness).

Citations and references

Rules of Professional Conduct:

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

Other opinions cited:

• ABA Opinion 220 (ABA Canon 19): a disqualified lawyer may leave the trial to his partners

See also

• TX Ethics Op. 226: County Attorney Interviewing a Jailed Accused
• TX Ethics Op. 234: Partner as a Material Witness

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-208/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_208.pdf

Original opinion text

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

QUESTION PRESENTED

A regular client (referred to below as the plaintiff) of a law firm had products in storage on the unsheltered premises of a storage company. While thus in storage, the products sustained damage as a result of what the plaintiff asserts to be a negligent discharge of corrosive acids from an adjoining chemical plant (referred to below as the defendant chemical company). Claim was made by plaintiff against the defendant chemical company, and the claim was directed to its insurer (called defendant insurance company) for handling.

Following some preliminary discussions between the plaintiff and the defendant insurance company, the plaintiff wrote to the defendant insurance company a letter proposing a formula for settlement. When delay ensued in obtaining a definitive response to such letter, the plaintiff turned the matter over to its regular counsel, a law firm consisting of eleven members and associates. A member of such firm conducted further negotiations with the defendant insurance company.

No settlement having been consummated, a suit has been filed by the plaintiff against the defendant insurance company and the defendant chemical company. One count in the complaint seeks recovery against the defendant insurance company on a contract for the settlement of the claim. The other count, in the alternative, seeks recovery against the defendant chemical company for the damages alleged to have been negligently caused.

This action is being handled by members or associates of the law firm other than the lawyer who negotiated with the defendant insurance company.

In the count against the defendant insurance company, it is alleged that, after negotiations between the member of the firm who was then handling the matter and the defendant insurance company, it was agreed between such member, acting on behalf of the plaintiff, and a representative of the defendant insurance company that the claim would be settled on the basis of the formula proposed in the plaintiff's letter to the insurance company. It is further alleged that, under the terms of such agreement, the dollar amount to be paid in settlement would be determined after the damaged products had actually been sold, and that the basic item of damage would be the amount by which the sum for which the plaintiff had a contract to sell the products exceeded the actual amount realized from the sale thereof in their damaged condition.

The inquiry states that it is not definitely known whether there will be any material variation between the testimony of the representative of the insurance company and the allegations of the complaint, in so far as they relate to the negotiations of the contract of settlement. However, the answer includes a general denial and a plea of the statute of frauds.

If, then, the testimony of the representative of the insurance company does not corroborate the applicable allegations of the complaint in every material detail, it will be necessary for the lawyer who conducted the transaction to testify as a material witness, and his testimony would support the allegations of the complaint respecting the making of the settlement agreement. Assuming that this lawyer does appear as a witness but does not otherwise participate, may the other members of this lawyer's firm ethically try the case?

18 Baylor L. Rev. 295 (1966)

APPEARANCE OF AN ATTORNEY AS A WITNESS FOR A CLIENT
If an attorney accepts employment in a matter with no knowledge that he will be a material witness, and a situation arises, prior to trial, about facts as to which the attorney is a material witness and concerning which he may have to testify, it is not a violation of the Canons of Ethics for the attorney to continue with the employment which he has previously accepted.

Canon 16.

Such action would not be a violation of the Canons of Ethics.

In this instance, the attorney accepted employment in the case before there was any indication that he might have to be a witness. Even now, it is not certain that he will have to testify. If he does, it will be because of a dispute regarding settlement negotiations which he undertook as a part of his employment in the case. Of course, it is unfortunate when a situation arises where a dispute occurs about facts as to which an attorney is a material witness. The fact that such a dispute arises, however, after the attorney has accepted employment should not disqualify him thereafter from going ahead with the employment that he has previously accepted.

The letter of inquiry indicates that if the attorney has to testify, he will leave the trial to his partners even though he is not disqualified under Texas Canon No. 16. Such conduct has been suggested by ABA Opinion No. 220, which holds that an attorney who is disqualified under ABA Canon No. 19 can leave the trial to his partners. Such procedure is also recommended because it will probably aid in furthering good public relations of the Bar, even though under our Canon it is not required and the lawyer himself may try the case if the necessity for testifying occurs during trial (with "trial" being broadly interpreted. (9-0.)

Tex. Comm. On Professional Ethics, Op. 208 (1960)