LEO: Attorney as Witness - Multiple  LE Op. 1226

 

Attorney as Witness - Multiple Representation - Personal Injury

Practice: Attorney Representing Wife in Domestic Matter and

Representing Husband in Personal Injury Action Against Wife's

Ex-husband.

 

May 8, 1989

 

You have asked the Committee to opine as to the propriety of Attorney X

continuing to represent Client A and Plaintiff, Client A's present husband,

in a personal injury suit given the following facts.

 

Attorney X has represented Client A for several years. Approximately two

years ago, Client A was caught naked in bed with her lover by her husband,

who then shot and wounded the lover. Client A's husband subsequently filed

for divorce and was awarded a divorce on the grounds of adultery

approximately one and one-half years later. Shortly thereafter, Client A

and her lover, the Plaintiff, were married.

 

You have indicated further that although the divorce was granted, issues

concerning custody, support, visitation with the children and equitable

distribution remained unresolved. In an attempt to settle these issues,

Attorney X offered to release Client A's ex-husband from all liability

regarding the wounding of Plaintiff. The ex-husband rejected the proposal;

thereafter, Attorney X filed a personal injury action against Client A's

ex-husband on behalf of the current husband, the Plaintiff. Recently

Attorney X has learned the Client A's ex-husband plans to call Attorney X

as a witness, to testify regarding the earlier offer to release all

liability, in an attempt to demonstrate potential bias and bad faith in

the filing of the suit, which prays for $500,000.

 

You wish to know whether Attorney X may continue to represent Client A,

and whether he may also continue to represent the Plaintiff, Client A's

current husband and former lover, given the likelihood of the attorney's

being called as a witness for Client A's ex-husband in the personal injury

lawsuit being brought by Plaintiff.

 

With regard to the continued representation of Client A, the Committee

believes the appropriate and controlling disciplinary rule is DR:5-105(B)

and (C), which requires that a lawyer shall not continue multiple

employment if the exercise of his independent professional judgment in

behalf of a client will be or is likely to be adversely affected by his

representation of another client, unless it is obvious that can adequately

represent the interest of each and if each consents to the representation

after full disclosure of the possible effect of such representation on his

independent professional judgment on behalf of each.

 

It is the opinion of the Committee that the facts of your inquiry do not

indicate a per se reason why Attorney X should not continue to represent

Client A.

 

The Committee believes that Attorney X should consider whether the

exercise of his independent professional judgment on behalf of Client A is

likely to be adversely affected by his representation of Plaintiff in

determining whether he may continue to represent both. If the attorney

knows of facts, or if it is apparent that the clients have conflicting

interests, precluding adequate representation of each, or if both Client A

and Plaintiff will not consent to the multiple representation after full

disclosure of its possible effect on Attorney X's judgment, then it would

be inappropriate for the attorney to continue the multiple representation.

 

With regard to the continued representation of Plaintiff by Attorney X,

considering the likelihood of the attorney's being called as a witness for

Client A's ex-husband, the appropriate and controlling disciplinary rule

is DR:5-102(B), which permits a lawyer to continue such representation

until it is apparent that his testimony is or may be prejudicial to his

client.

 

The Committee has previously opined that it is not improper for a lawyer

to continue representing a client in a matter pending litigation under the

circumstances you have described. (See LE Op. 593, LE Op. 655 and LE

Op. 866)

 

The Committee opines that Attorney X should determine whether continuing

the professional relationship is in the client's best interest in light of

the possibility that the subject on which he will testify may be

prejudicial to his client. Where the question arises as to whether

withdrawal would impose a personal or financial sacrifice on the client,

the attorney must also consider the materiality of his testimony and the

effectiveness of his representation in view of his personal involvement.

Any doubts should be resolved in favor of the lawyer testifying and

against his continuing as an advocate. (See EC:5-10)

 

Committee Opinion May 8, 1989