LEO: Attorney as Witness - Personal Injury  LE Op. 1240

 

Attorney as Witness - Personal Injury Representation - Withdrawal

of Representation: Attorney/Witness for Opposing Party;

Withdrawing from Collateral Matter.

 

May 2, 1989

 

You have advised that Lawyer A represented the plaintiff in a personal

injury action in which, prior to the scheduled trial, Lawyer A accepted,

on behalf of his client/plaintiff, a settlement offer made by counsel for

the defendants. The settlement agreement was confirmed in writing between

Lawyer A and counsel for the defendants; however, several days later,

counsel for the defendants advised that they would not perform the

settlement agreement because of newly discovered information which

allegedly showed that in depositions and responses to interrogatories,

plaintiff made misrepresentations constituting fraud in the inducement of

the settlement agreement. Lawyer A then filed breach of contract action

against the defendant and his insurance carrier. The issues in the breach

of contract action include (1) failure to perform the settlement agreement

; (2) whether or not there were certain misrepresentations made by the

plaintiff in the depositions and responses to interrogatories; and (3)

whether or not counsel for defendants justifiably relied upon these

representations. The suit prays for damages in the amount of the earlier

agreed-upon settlement.

 

The fact that there was a settlement agreement has been established by

the letters between Lawyer A and counsel for the defendants. The

representations of plaintiff which counsel for the defendant alleges were

relied upon in making their offer to settle are contained in the

deposition transcript and in plaintiff's written responses to

interrogatories. Counsel for the defendants have withdrawn from the

representation of the defendants in the breach of contract action since

they will testify as to their reliance upon representations made by the

plaintiff. In addition, counsel for the defendants have recommended to the

defendants' new counsel that Lawyer A be summoned to testify at trial and

that the plaintiff's case file be subpoenaed. Lawyer A does not anticipate

any issue arising that would necessitate testimony from him or any member

of his firm and he intends to resist any request that he testify in this

case.

 

You have asked the Committee to consider whether Lawyer A may ethically

continue to represent plaintiff in the breach of contract action and in

the original tort claim.

 

The appropriate and controlling disciplinary rule relative to whether

Lawyer A may continue to represent the plaintiff in the breach of contract

action is DR:5-102(B) which provides that, if 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.

 

Likewise, the Committee believes that it is ethically permissible for

Lawyer A to continue to represent plaintiff in the original tort claim.

There is no prohibition under DR:5-102 relative to withdrawal as counsel

when a lawyer becomes a witness that would require the lawyer to withdraw

as well from any substantially related matter pending litigation. However,

the Committee opines that if it becomes apparent that the testimony given

by Lawyer A tends to or will prejudice or damage his client, Lawyer A

should move to withdraw from the original tort claim since the continued

representation could therefore result in a course of conduct by the lawyer

that would be inconsistent with zealous representation. (See DR:7-101(A)(

3) and DR:2-108(A)(1))

 

Committee Opinion May 2, 1989