Legal Ethics Opinion No. 1474

 Attorney as Witness: Attorney/Mechanics' Lien Agent Representing
Contractor and Testifying as to Claims and Disbursements

You have presented a hypothetical situation in which law firm A
acts as mechanics' lien agent, pursuant to recently enacted Va.
Code 43-4.01, for its long-time builder/developer client B.  In
some instances, A disburses funds pursuant to Va. Code
43-4.01(F).  In other instances, A simply receives notice
pursuant to Va. Code 43-4.01(D).

You indicate that a mechanics' lien is filed against a
construction project for which A has been designated as
mechanics' lien agent for B.  The bill of complaint is timely
filed and B asks A to undertake representation on its behalf in
defense of the bill of complaint.

You have asked the committee to opine whether, under the facts of
the inquiry, it is proper for the firm to represent the client in
defense of the bill of complaint where it is possible or probable
that the law firm will be called to testify as the mechanics'
lien agent.  You also inquire whether the testimony qualifies for
the exception under DR 5-101(B)(1).   

The appropriate and controlling Disciplinary Rule related to your
inquiry is DR 5-101(B), which states that a lawyer shall not
accept employment in contemplated or pending litigation if he
knows or it is obvious that he or a lawyer in his firm ought to
be called as a witness, except that he may undertake the
employment and he or a lawyer in his firm may testify under
certain enumerated circumstances, the most pertinent of which
circumstances includes that in which the testimony will relate
solely to an uncontested matter or to a matter of formality and
there is no reason to believe that substantial evidence will be
offered in opposition to the testimony.  Further guidance is
available through Ethical Consideration 5-9 which exhorts that
"[a]n advocate who becomes a witness is in the unseemly and
ineffective position of arguing his own credibility.  The roles
of an advocate and of a witness are inconsistent...."; and EC
5-l0 which indicates that, when the question arises as to the
lawyer's accepting or retaining employment while also needing to
be called as a witness, "doubts should be resolved in favor of
the lawyer testifying and against his becoming or continuing as
an advocate".

The committee recognizes that the attorney, as mechanics' lien
agent, may be in the best position to acknowledge receipt of
notice of claims and testify as to the disbursement of funds in
satisfaction of such claims.  Thus, the committee believes that
it is obvious that the attorney ought to be called as a witness
in the matter. 

The committee has previously opined that an attorney may act as a
witness for his client if the testimony relates solely to an
uncontested matter or to a matter of formality.  See, e.g., LEO
#1064, #1424.  The committee takes notice that the referenced
mechanics' lien statute requires perfection of a lien through
proper notice and an itemized statement which includes payments
made and balance due.  Based upon those statutory requirements,
therefore, the committee is of the opinion that the attorney's
testimony as mechanics' lien agent would relate to central issues
in the case rather than to matters of formality.  The committee
recognizes that the attorney does not contest that the bill of
complaint has been timely filed; however, the committee is of the
view that, although the timeliness of the bill may be
uncontested, the sufficiency of notice, the itemized statements,
and the record of payments made may still be contested issues. 
Thus, since there is no information at the outset of the
representation as to whether those issues will be contested, the
committee opines that it would be improper and violative of DR
5-101(B) for A to undertake representation of B in defense of the
bill of complaint.  Furthermore, the committee notes that the
mandates of DR 5-l0l(B), precluding an attorney from serving as
both advocate and witness, do not include any provision for a
cure by consent of the parties.  Finally, the committee
reiterates the posture of EC 5-l0 which encourages the lawyer to
resolve any doubts as to the advocate-witness dilemma in favor of
the lawyer testifying and against his continuing as an advocate.  

Committee Opinion
October 19, 1992