Can a lawyer keep representing a client in a later, related suit when the lawyer may be called as a witness other than on the client's behalf?

Plain-English summary

In the hypothetical, A had a contract to buy land from B, contingent on the county issuing A a building permit. When A could not obtain the permit, B retained Attorney D of Law Firm X and won a mandamus and declaratory-judgment action against the county; during that litigation A cooperated with Firm X and spoke with Attorney D about both the litigation and A's contract with B. After B prevailed, A demanded the property, but B (through Attorney D) refused, contending the contract was no longer valid. A, now represented by Law Firm Y, then sued B for specific performance, and B was again represented by Attorney D of Firm X. The inquiry asked whether Attorney D and/or Firm X could represent B in the specific-performance suit, and whether Firm Y should bring the matter to Firm X's attention.

The committee identified DR 5-102(B) as controlling: if a lawyer, after undertaking employment in contemplated or pending litigation, learns it is obvious that he or a lawyer in his firm may be called as a witness other than on behalf of his client, he may continue the representation until it is apparent that his testimony is or may be prejudicial to his client. The committee pointed to LE Op. 836 and LE Op. 866 as dispositive of the issue, though not directly on point. On the second question, whether Firm Y had a duty to inform Firm X of a possible conflict if Attorney D were called to testify, the committee said that was not within its purview, and that Firm Y could, as a courtesy, advise Attorney D if he was not already aware of the possibility.

Currency note

This opinion was issued in 1988, under Virginia's former Code of Professional Responsibility (the disciplinary rule it cites), before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. As the committee note observes, current Rule 3.7(c) no longer disqualifies the entire firm when a lawyer must testify, and the testifying lawyer's disqualification is not imputed to the firm unless an actual conflict under Rule 1.7 or Rule 1.9 exists. 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 Treat this page as historical context, not current guidance.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: Can a lawyer who may be called as a witness in a related case keep representing the client?

A: Under this 1988 opinion, where the lawyer may be called to testify other than on behalf of his client, DR 5-102(B) let him continue until it became apparent that his testimony is or may be prejudicial to that client.

Q: Must opposing counsel warn the firm of the potential conflict?

A: The committee said that was not within its purview, but that opposing counsel could, as a courtesy, advise the lawyer of the possible conflict if he was not already aware of it.

Background and rules framework

The opinion interpreted former Virginia DR 5-102(B), which governed continuing a representation when the lawyer or a firm lawyer may be called as a witness other than on the client's behalf. Virginia's current counterpart is Rule 3.7, the analog of ABA Model Rule 3.7; as the committee note records, the testifying lawyer's disqualification is not imputed to the firm absent an actual conflict.

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 5-102(B) (lawyer as witness other than on behalf of the client)
• ABA Model Rule 3.7 (lawyer as witness)

Other opinions cited:

• Virginia LE Op. 836 and LE Op. 866: lawyer-as-witness in related representations.

See also

• VA LEO 1136: Lawyer-Witness Withdrawal and Hardship
• VA LEO 1394: Lawyer-Witnesses Taking the Case
• VA LEO 1359: In-House Counsel as the Only Witness

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1118.pdf

Original opinion text

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

Committee Opinion
September 1, 1988
LEGAL ETHICS OPINION 1118

WITNESS: ATTORNEY AS WITNESS IN
A SUBSTANTIALLY RELATED CASE.

You have presented a hypothetical situation in which A has a contract to purchase a
parcel of land from B; however, this contract is contingent on the county's issuance of a
building permit to A. When A, through his Attorney C, is unsuccessful in obtaining a
permit, B retains Attorney D with Law Firm X and files a mandamus and declaratory
judgment against the county. During the litigation, A cooperates with Law Firm X in
their preparation for trial. In addition, A has several conversations with Attorney D
regarding the status of this litigation as well as the status of A's contract with B.
B prevails at trial against the county and Attorney D notifies A of this development. A
then makes demand for settlement; however, B, through his Attorney D, refuses to
convey the parcel to A, contending that the contract is no longer valid.
A, now represented by Law Firm Y, files suit against B for specific performance of the
contract. In this suit, B is represented once again by Attorney D of Law Firm X.
You have asked whether it is ethically permissible for Attorney D and/or Law Firm X
to represent B in the specific performance suit; and should Law Firm Y bring this matter
to the attention of Law Firm X.
Given the facts of this situation, the Committee believes that DR:5-102(B) is the
appropriate and controlling rule involved. Disciplinary Rule 5-102(B) states that if an
attorney, after undertaking employment in contemplated or pending litigation, learns it is
obvious that he or a lawyer from his firm may be called as a witness other than on behalf
of his client, he may continue the representation until it is apparent that his testimony is
or may be prejudicial to his client.
Please see L E Op. No. 836 and L E Op. No. 866. Although they are not directly on
point with the matter in question, the Committee opines that they are dispositive of the
issue you have raised in your inquiry.
You also wish to know whether Law Firm Y has a duty to inform Law Firm X of a
possible conflict of interest existing should Attorney D be called to testify. Since this is
not an issue within the purview of the Standing Committee on Legal Ethics, the
Committee feels that if you wish you may advise Attorney D as a courtesy, if he is not
already aware of the possibility of a conflict.
Committee Opinion
September 1, 1988
Legal Ethics Committee Notes. – See Rule 3.7(c) stating that there is no longer
disqualification of the entire firm when a lawyer must testify, unless representation would

Committee Opinion
September 1, 1988
create a conflict under Rule 1.7 or Rule 1.9. Under Rule 3.7(c), this disqualification is
not imputed to the lawyer’s firm unless there is an actual conflict of interest.