Ethics Question of the Month
March 2021
Should I Stay or Should I Go?
Can a litigator represent a client in court when another firm lawyer is a fact witness in the same proceeding?
The Situation
Lawyer Tina is a transactional lawyer at ABC Law Firm. She assists her client, XYZ Corporation, in negotiating and drafting contracts for a merger and acquisition with the Acme Widget Company. A few months after the deal is consummated, friction develops between XYZ and Acme, and their disagreements lead to litigation.
XYZ approaches Lawyer Tina to explain that, because the litigation outcome may hinge on the contract negotiations, and because she knows more about them than anyone, she should represent XYZ as its lead trial lawyer. Tina explains that she is a transactional lawyer only and has never tried a lawsuit. She recommends that XYZ hire Lawyer Sofia, the chair of ABC Law Firm’s Litigation Section and an experienced and skillful commercial litigator. Tina offers to sit second chair on the trial team to give XYZ an added comfort level because of their long-standing working relationship. XYZ likes that arrangement and agrees to go forward on that basis.
As trial approaches, the pleadings and discovery make it clear that the trial will indeed focus on resolving disputed questions about the negotiations, when drafts were exchanged, how the wording in the drafts changed, and things that were said by counsel on both sides during the negotiations. Tina is identified by Acme as a fact witness.
The Question
The Correct Answer is D Of 28 Responses, 46% are correct.
The Explanation
Rule 3.08 of the Texas Disciplinary Rules of Professional Conduct reads:
a) A lawyer shall not accept or continue employment as an advocate before a tribunal in a contemplated or pending adjudicatory proceeding if the lawyer knows or believes that the lawyer is or may be a witness necessary to establish an essential fact on behalf of the lawyer's client, unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony;
(3) the testimony relates to the nature and value of legal services rendered in the case;
(4) the lawyer is a party to the action and is appearing pro se; or
(5) the lawyer has promptly notified opposing counsel that the lawyer expects to testify in the matter and disqualification of the lawyer would work substantial hardship on the client.
(b) A lawyer shall not continue as an advocate in a pending adjudicatory proceeding if the lawyer believes that the lawyer will be compelled to furnish testimony that will be substantially adverse to the lawyer's client, unless the client consents after full disclosure.
(c) Without the client's informed consent, a lawyer may not act as advocate in an adjudicatory proceeding in which another lawyer in the lawyer's firm is prohibited by paragraphs (a) or (b) from serving as advocate. If the lawyer to be called as a witness could not also serve as an advocate under this Rule, that lawyer shall not take an active role before the tribunal in the presentation of the matter.
Comment 8 to Rule 3.08 states:
This rule does not prohibit the lawyer who may or will be a witness from participating in the preparation of a matter for presentation to a tribunal. To minimize the possibility of unfair prejudice to an opposing party, however, the Rule prohibits any testifying lawyer who could not serve as an advocate from taking an active role before the tribunal in the presentation of the matter. See paragraph (c). Even in those situations, however, another lawyer in the testifying lawyer's firm may act as an advocate, provided the client's informed consent is obtained.
The Rule generally prohibits an attorney from serving as a witness and advocate in the same case. However, Section (c) and Comment 8 suggest that a lawyer may serve as trial attorney where another lawyer in the firm is prohibited from doing so because she will be a witness, provided that: (1) the client provides informed consent, and (2) “the lawyer to be called as a witness” does not “take an active role before the tribunal in the presentation of the matter.” Therefore, with XYZ’s consent, Sofia may act as an advocate for XYZ, but Tina cannot take an active role in presenting the matter to the tribunal. The best answer is D.
Bluebook Citation
Should I Stay or Should I Go?: Ethics Question of the Month - March 2021,
Texas Center for Legal Ethics
(2021), from https://legalethicstexas.com/ethics-question-of-the-month/ethics-question-of-the-month-march-2021/ (last visited Apr 29, 2024)