Can a lawyer represent a law partner who is a defendant in a personal lawsuit and is expected to testify as a witness in his own case?

Plain-English summary

Opinion E-85-7 addressed an attorney who was a partner in firm X and a defendant, along with his wife, in a lawsuit involving his private and personal interests, unrelated to his professional work; he was expected to be a material witness on his own behalf. The question was whether another partner in firm X could represent the attorney and his wife.

The committee noted that former SCR 20.25(1) requires a lawyer to withdraw from litigation in which the lawyer learns, or it is obvious, that the lawyer or a lawyer in the firm ought to be called as a witness on behalf of the client (compare Model Rule 3.7). It concluded, however, that this prohibition does not apply when the lawyer likely to testify is a party to the suit, citing opinions from Michigan, Virginia, and Nebraska. The committee explained that the rule's major purpose, drawn from ABA Formal Opinion 339, is to prevent a lawyer from being placed in the unseemly position of arguing his own credibility or that of a firm lawyer, where the testimony's weight may be discounted to the client's detriment. Those risks were not present here: the lawyer-witness, as a party, has an interest in the outcome like any nonlawyer party, unlike a lawyer-witness testifying for a client, who is an obviously interested witness subject to impeachment on that account. The committee therefore concluded another partner could represent the lawyer-party.

Currency note

This opinion was issued in 1985, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it analyzes conduct under the former Code. The lawyer-as-witness rule is now found in SCR 20:3.7 / Model Rule 3.7. 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 Treat this page as historical context, not current guidance.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 the lawyer-as-witness rule force withdrawal when the testifying lawyer is the party himself?

A: The committee concluded no. The prohibition applies when a lawyer would testify for a client, not when the lawyer who will testify is a party to the suit.

Q: Why does it matter that the lawyer is a party rather than counsel?

A: The committee reasoned that a lawyer-party has an interest in the outcome like any other party, so the concern about a lawyer arguing his own credibility as counsel is not present.

Q: Can another partner in the same firm take the representation?

A: The committee concluded yes; another partner in the firm may represent the lawyer-party and his spouse on these facts.

Background and rules framework

The opinion interpreted the former Code's lawyer-as-witness provision (SCR 20.25(1)) and referenced Model Rule 3.7, distinguishing the situation of a lawyer-witness who is a party from one testifying as an advocate's witness. The rule is now found in SCR 20:3.7 / Model Rule 3.7.

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20.25(1) / Model Rule 3.7 (lawyer as witness) (former Code provision)

Other opinions cited:

• ABA Formal Opinion 339 (Jan. 31, 1975)
• State Bar of Michigan Opinion CI-720 (1982)
• Virginia State Bar Informal Opinion 114
• Nebraska State Bar Association Opinion 74-6

See also

• WI Ethics Op. EF-25-01: Lawyer as Witness
• WI Ethics Op. E-88-6: Lawyer as Witness on Behalf of a Client
• WI Ethics Op. E-87-1: City Attorney as Advocate and Advisor

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-85-7.pdf