LEO: Attorney as Witness - In-House Counsel -  LE Op. 1359

 

Attorney as Witness - In-House Counsel - Hearing Officer: In-House

Counsel Representing Employer When the In-House Counsel Will

Be a Witness; Propriety of Appeals Examiner Ignoring

Opposing Counsel's Objection to Such Representation.

 

June 28, 1990

 

You have asked the Committee to consider the propriety of in-house

counsel representing his employer at a Virginia Employment Commission (VEC)

hearing when the in-house counsel will be the only witness for the

employer. In addition, you wish to know whether it is improper for the

lawyer/appeals examiner for the VEC to ignore an objection to such

testimony.

 

For the purposes of this opinion, the Committee will assume that in-house

counsel is a Virginia attorney, since a non-lawyer or a foreign attorney

may represent a party before the VEC, and, as such, neither the non-lawyer

or foreign attorney can be required to adhere to the Disciplinary Rules.

 

The appropriate and controlling Disciplinary Rules relevant to your

inquiry are DR:5-101(B) and DR:5-102(A). Disciplinary Rule 5-102(A)

provides that if, after undertaking employment, an attorney learns, or it

becomes obvious that he or a lawyer in his firm ought to be called as a

witness on behalf of his client, he shall withdraw from the conduct of the

trial, and his firm, if any, shall not continue the representation, unless

one of the conditions enumerated in DR:5-101(B) exists. Disciplinary

Rule 5-101(B) provides that it is permissible for an attorney to accept

employment even if he knows or it is obvious that he or another attorney

in his firm ought to be called as a witness if (1) the testimony will

relate solely to an uncontested matter or to a matter of formality and no

substantial evidence will be offered in opposition to the testimony; (2)

the testimony will relate solely to the nature and value of the legal

services rendered in the case by the lawyer or his firm to the client; or (

3) as to any matter, if refusal would work a substantial hardship on the

client because of the distinctive value of the lawyer or his firm as

counsel in the particular case.

 

As indicated in the Committee's prior LE Op. 329, for the purposes of

ethical conduct, administrative hearings constitute litigation as

contemplated by DR:5-102. The Committee further directs your attention

to LE Op. 976 which in the Committee's view is dispositive of your

inquiry. In that earlier opinion, the Committee found that, where trial

counsel ought to be called as a witness on behalf of his client, DR:5-

102(A) would mandate that trial counsel withdraw from the proceeding

unless one of the circumstances enumerated in DR:5-101(B) existed. The

only possible exception which could have applied under the facts of that

inquiry was an analysis of whether the withdrawal would "work a

substantial hardship on the client because of the distinctive value of the

lawyer or his firm as counsel in the particular case." ( DR:5-101(B)(3))

The Committee concluded by stating that the client's desire to have the

attorney continue representation even though the attorney might be called

as a witness was not sufficient to warrant a "substantial hardship." (See

also ABA Formal Opinion No. 339 and LE Op. 1136)

 

Therefore, if the Virginia in-house counsel's testimony will be relevant

to the central issue of the cause of action, it would be improper for the

in-house counsel simultaneously to engage or continue the representation

of his client/employer in the VEC proceeding. Only if the testimony will

be related solely to the nature and value of the legal services rendered,

or in the instance where withdrawal would result in substantial hardship

to the client, may an attorney represent a client and be called as a

witness to testify on his/her behalf. (See LE Op. 723, LE Op. 879, LE

Op. 907, LE Op. 1162) The Committee has consistently been of the view that

the role of an advocate and of a witness are inconsistent; an advocate

advances or argues the cause of another, while a witness states facts

objectively. EC:5-9. Where there is doubt as to whether an attorney

should testify on behalf of his client, the attorney should consider the

interests of the client and if the client's interests would be better

served by his attorney's testimony than by his representation, the

attorney should withdraw and should side on the issue of testifying.

 

As for the matter of the attorney/hearing examiner's conduct, the

Committee believes that decisions of trial procedures in response to a

motion for disqualification of opposing counsel are in the discretion of

the court. Therefore, regardless of whether a conflict may have existed,

it is beyond the purview of the Committee to opine as to the propriety of

the finder of fact or the court's denial of a motion for disqualification,

the basis of which raised an ethical violation.

 

While you have not inquired about your duty to report, please be advised

that all lawyers having knowledge that another attorney has committed a

violation of the Disciplinary Rules that raises a substantial question as

to that lawyer's fitness to practice law in other respects have an

obligation under DR:1-103(A) to report such knowledge to the appropriate

authority. Whether an attorney's conduct is such that it raises a "

substantial question as that lawyer's fitness to practice law in other

respects" is a case-by-case decision which should be made after

consideration of the facts and analysis of the impact on the offending

lawyer's fitness to practice law. (See LE Op. 1308 and In re Himmel, 125

Ill.2d 531, 533 N.E.2d 790 (1988))

 

Committee Opinion June 28, 1990