Ethics Opinions

Opinion No. 88-6

June 1988

Summary: When a lawyer and his firm have been disqualified as litigation counsel under DR 5-102(A) and (B) because the lawyer ought to be called as a witness on behalf of the client and also because the lawyer may be called by the other side since some of his testimony will be prejudicial to the client, the firm ought not to continue as co-counsel in the pretrial proceedings.

Facts: A factual situation has been presented in which DR 5-102(A) and (B) require that a lawyer and his law firm be disqualified from continuing to represent a client in litigation. The reasons for disqualification are the necessity that the lawyer be called as a witness on behalf of the client and the further fact that it is apparent that the lawyer may be called as a witness by the other side because some of his testimony will be prejudicial to his client. The firm, however, noting the rule's requirement of withdrawal from conduct of the "trial," inquires whether it may continue to assist as co-counsel with discovery, trial preparation and pretrial negotiations.

Discussion: DR 5-102(A) and (B) provides as follows:
(A) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in DR 5-101(B), (1) through (4).
(B) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or 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.
We believe that there are two purposes that animate the far-reaching prohibition contained in the advocate witness provision of DR 5-102. First is an attempt to preclude confusion on the part of the trier of the facts about the role of the advocate who is also a witness. The second is the indication in the vicarious disqualification provision that DR 5-102 is also designed to preclude confusion in the role on the part of the firm itself because of the potential effects of the witness role on the professional judgment of the law firm. A lawyer may well have difficulty in making a proper assessment of the testimony of a fellow lawyer in the firm and that difficulty may have a substantial effect on the independent professional judgment of the lawyer not only in the conduct of the litigation before the trier of the fact but also during discovery and pretrial negotiations. This would seem to be especially the case in a situation like that presented in the inquiry, where the testimony of the lawyer would appear to be quite important. Thus, in our view, the word "trial" in DR 5-102 should not be construed narrowly to apply solely to the actual litigation before the trier of the facts.
We are aware that courts that have considered this issue have taken differing views on the appropriate interpretation of DR 5-102 on this issue. We find ourselves more in sympathy with the views expressed in General Mill Supply Co. v. SCA Services, Inc., 679 F.2d 704 (6th Cir. 1982) than with those expressed in Norman Norrell Inc. v. Federated Dept. Stores, 450 F.Supp. 127, 130-131 (S.D.N.Y. 1978), Brotherhood of Ry. Carmen v. Delpro Co., 549 F.Supp. 780-789 (D. Del. 1982), and Moyer v. 1330 Nineteenth St. Corp., 597 F.Supp. 14 (D.D.C. 1984). The court in General Mills Supply, in affirming a disqualification of a law firm to act as counsel in the pretrial stated:
Under the Fed. R. Civ. P. the ultimate "trial" is connected as a seamless web to the ascertainment of issues at the pretrial proceedings, and particularly to the discovery depositions. Not even the possible confusion of the jury would be averted by exclusion from the "trial" only. The jury would very likely hear depositions, or excerpts from them read, in which the disqualified lawyer figured ... . The most acute evils we would foresee from failure to enforce the canon in this instance would occur in the pretrial period, the one in which the most time and money is consumed in civil cases.
The question whether disqualification under the attorney-witness rule may extend to pretrial proceedings was recently faced by the Court of Appeals for the First Circuit in Culebras Enterprises Corp. v. Rivera-Rios, 846 F.2d 94 (1988), which held that the firm could continue to represent the client at the pretrial stage although it was disqualified by the attorney-witness rule from participating at the trial. That case was decided on the basis of guidance provided by Model Rule 3.7, which, as the court noted, is a much less restrictive disqualification provision than DR 5-102(A) and (B). In the first place, Model Rule 3.7 does not provide for vicarious disqualification of the whole firm when one lawyer must be disqualified because of the advocate-witness rule. In the second place, since that rule prevents a disqualified lawyer from acting "as an advocate at a trial" when the lawyer is likely to be necessary witness, it can be read as permitting other activity in connection with a trial other than "acting as an advocate." Moreover, the First Circuit emphasized that the purpose of Model Rule 3.7 was simply prevention of confusion in the trier of the fact about the lawyer's role whereas, as noted above, the policy of DR 5-102(A) and (B) seems broader.
In advising that the prohibition of DR 5-102 applies to the pretrial features of the litigation as well as to the conduct of the trial we are not unaware of the distinctions between DR 5-101 (stating when a lawyer must refuse employment from the outset) and DR 5-102 (stating when a lawyer must withdraw because of information acquired after the representation has been undertaken). Under DR 5-101(B) a lawyer "shall not accept employment in contemplated or pending litigation" if the lawyer or a lawyer in his firm is to be a witness, while under DR 5-102(A) the lawyer "shall withdraw from the conduct of the trial" and the lawyer's firm "shall not continue representation in the trial." Although the ban imposed by DR 5-102 is narrower than that imposed by DR 5-101, we believe that the lawyer who is withdrawing under the dictates of DR 5-102 should avoid participating in pretrial matters to the extent that to do so would contravene the two policies underlying the rule we have identified above. Thus, that lawyer should not conduct depositions or otherwise engage in pretrial proceedings that might be called to the attention of the trier of facts in a manner that could confuse the advocate and witness roles. Also, that lawyer should not sit at counsel table during the trial, except to the extent that the court, being apprised of the problem, permits.
With regard to effectuating the second policy underlying the rule, namely that the lawyer act for the client with independent professional judgment unimpaired by the lawyer's own role as witness, we believe that this is best accomplished by the selection of independent replacement counsel who assumes charge of all aspects of the case. We recognize that the extent to which the lawyer withdrawing from conducting the trial will continue to participate in a matter will vary greatly from one situation to another, but the lawyer and the lawyer's firm must avoid acting or rendering judgments in a manner that is affected by the witness role of one of the firm's lawyers.

Permission to publish granted by the Board of Delegates on November 15, 1988. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.