LEO: Witness: Attorney as Witness in a  LE Op. 1118

 

Witness: Attorney as Witness in a Substantially Related Case.

 

September 1, 1988

 

You have presented a hypothetical situation in which A has a contract to

purchase a parcel of land from B; however, this contract is contingent on

the county's issuance of a building permit to A. When A, through his

Attorney C, is unsuccessful in obtaining a permit, B retains Attorney D

with Law Firm X and files a mandamus and declaratory judgment against the

county. During the litigation, A cooperates with Law Firm X in their

preparation for trial. In addition, A has several conversations with

Attorney D regarding the status of this litigation as well as the status

of A's contract with B.

 

B prevails at trial against the county and Attorney D notifies A of this

development. A then makes demand for settlement; however, B, through his

Attorney D, refuses to convey the parcel to A, contending that the

contract is no longer valid.

 

A, now represented by Law Firm Y, files suit against B for specific

performance of the contract. In this suit, B is represented once again by

Attorney D of Law Firm X.

 

You have asked whether it is ethically permissible for Attorney D and/or

Law Firm X to represent B in the specific performance suit; and should Law

Firm Y bring this matter to the attention of Law Firm X.

 

Given the facts of this situation, the Committee believes that DR:5-102(

B) is the appropriate and controlling rule involved. Disciplinary Rule 5-

102(B) states that if an attorney, after undertaking employment in

contemplated or pending litigation, learns it is obvious that he or a

lawyer from 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.

 

Please see LE Op. 836 and LE Op. 866. Although they are not directly

on point with the matter in question, the Committee opines that they are

dispositive of the issue you have raised in your inquiry.

 

You also wish to know whether Law Firm Y has a duty to inform Law Firm X

of a possible conflict of interest existing should Attorney D be called to

testify. Since this is not an issue within the purview of the Standing

Committee on Legal Ethics, the Committee feels that if you wish you may

advise Attorney D as a courtesy, if he is not already aware of the

possibility of a conflict.

 

Committee Opinion September 1, 1988