🧪 TEST MODE ACTIVE Use test card: 4242 4242 4242 4242
Ezel / Ethics Opinions / WISBAR
WISBAR 1982

If a city attorney is called as a witness by the opposing party, must the attorney withdraw from representing the city?

Short answer: The opinion concluded that the city attorney need not withdraw when called as a witness by the adverse party (rather than on the city's behalf), subject to the rules, the client's consent, and the trial court's discretion over whether the attorney may testify.

Apply this to your situation

This page answers the general question as of 1982. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.

Currency note: this opinion is from 1982
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

Opinion E-82-3 asked whether a city attorney (or assistant) may continue to represent the city in an action by a former employee when the city attorney is called, or notified that he will be called, as a witness by the adverse party. The committee answered yes, subject to limitations.

The committee distinguished the two lawyer-as-witness rules. SCR 20.25(1) requires a lawyer who learns that the lawyer or a firm member ought to be called as a witness on behalf of the lawyer's own client to withdraw from the trial. SCR 20.25(2), by contrast, allows a lawyer who may be called as a witness other than on behalf of the client to continue the representation until it becomes apparent that the testimony is or may be prejudicial to the client. Because the city attorney would be called by the adverse party (not on the city's behalf) and the action had already been commenced, the prohibition of SCR 20.25(1) did not apply. The committee noted that whether the attorney may actually testify rests in the trial court's discretion, citing Harris v. State, 78 Wis. 2d 357 (1976), Peterson v. Warren, 31 Wis. 2d 547, and Rude v. Algiers, 11 Wis. 2d 471 (1960), which discourage mixing the roles of witness and advocate and discourage calling opposing counsel to prove facts provable another way.

The committee observed that requiring the city attorney to withdraw would disqualify the entire city attorney's staff (SCR 20.24(2)(d)) and work a substantial hardship on the city. If the lawyer is permitted to testify, the lawyer remains bound to preserve the client's confidences and secrets (SCR 20.21, 20.22). The committee concluded the city attorney need not withdraw under the facts presented, conditioned on compliance with the Supreme Court Rules and decisions cited and on obtaining the client's consent to continue the representation.

Currency note

This opinion was issued in 1982, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it applies the former Code provisions cited in the opinion. The lawyer-as-witness question is now governed by SCR 20:3.7 / Model Rule 3.7, with confidentiality under SCR 20:1.6 / Model Rule 1.6. 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: Does a lawyer have to withdraw whenever the lawyer might be a witness?

A: No. The committee distinguished being called on the client's behalf (which required withdrawal under SCR 20.25(1)) from being called by the adverse party (which allowed continued representation under SCR 20.25(2) until the testimony is or may be prejudicial to the client).

Q: Who decides whether the lawyer may actually testify?

A: The committee said it is within the trial court's discretion, citing Wisconsin Supreme Court decisions that discourage mixing the roles of witness and advocate.

Q: Why did the committee weigh hardship to the client?

A: Because withdrawal of the city attorney or an assistant would disqualify the entire city attorney's staff, working a substantial hardship on the city.

Background and rules framework

The opinion applied the former lawyer-as-witness rules (SCR 20.25(1) and (2)), the imputation provision (SCR 20.24(2)(d)), and the confidentiality rules (SCR 20.21, 20.22). The current counterparts are the lawyer-as-witness rule (SCR 20:3.7 / Model Rule 3.7) and the confidentiality rule (SCR 20:1.6 / Model Rule 1.6).

Citations and references

Rules of Professional Conduct:

  • Wis. SCR 20.25(1), (2) (lawyer as witness) (former Code)
  • Wis. SCR 20.24(2)(d) (disqualification of the firm) (former Code)
  • Wis. SCR 20.21, 20.22 (confidences and secrets) (former Code)
  • Model Rules 3.7, 1.6 (lawyer as witness; confidentiality)

Cases:

  • Harris v. State, 78 Wis. 2d 357 (Wis. 1976), discouraging mixing the roles of witness and advocate
  • Peterson v. Warren, 31 Wis. 2d 547 (Wis. 1966), trial court discretion to permit an attorney to testify
  • Rude v. Algiers, 11 Wis. 2d 471 (Wis. 1960), discouraging calling opposing counsel as a witness

See also

Source

Get today's answer for your situation

You just read a 1982 opinion on this question. Ezel checks the current rules of professional conduct in your state and answers your specific situation, with citations.

Opens in Ezel Pro. Every answer cites the rules it relies on.