Legal Ethics Opinion No. 1424

  Attorney As Witness: Collection Cases--Attorney Testifying In
General District Court As To Debt Owed Client When Defendant Does
Not Appear

You have presented a hypothetical situation in which a law firm
handles the collection of unpaid accounts for numerous retail,
commercial and professional practices.  Although the large
majority of the firm's cases come through a local collection
agency, the firm has a signed agreement with the individual
clients concerning its representation of them, as well as the
basis upon which its fees are to be paid.

In most of the firm's collection cases, its procedure is to file
a civil warrant in the General District Court and to mail a copy
of the civil warrant to the debtor/defendant.  No affidavit of
the account is filed with the warrant or with the Court.  On the
return date of the warrant, a member of the firm will appear in
the General District Court, having reviewed the file and having
information, either from the client or through the collection
agency, which reflects the balance owing on the account.  In most
cases, the matter is not contested and the defendant does not
appear.  In some instances, however, the defendant does appear
but does not dispute the amount owing.  In the instances where
the defendant does appear and disputes the amount owing, a trial
date is set.

You further indicate that, in those instances in which the
defendant does not appear, the judge of the General District
Court places the attorney under oath and the attorney then
testifies as to the balance owing on the account.  The attorney's
knowledge of the account and the balance owing is based upon
information provided to the firm, either directly by the client
or through the collection agency employed by the client.  In the
circumstances you describe, based on the attorney's testimony and
the fact that the defendant does not appear to dispute the
account, judgment then is granted to the plaintiff/creditor. 

You have asked the committee to opine whether, under the facts of
the inquiry, it is proper for an attorney to be placed under oath
and testify as to the accuracy of a collection client's account,
based upon information provided to the attorney by the client,
when the matter is not contested by the defendant.

The appropriate and controlling Disciplinary Rule related to your
inquiry is DR 5-101(B)(1) which provides 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 testify if 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.

The committee has previously opined that an
attorney/co-executor/witness must discontinue representation of a
client unless the finder of fact determines that the
attorney/co-executor's testimony will relate solely to an
uncontested matter or to a matter of formality to which no
substantial opposing evidence will be offered.  See LEO #723. 

The committee believes that the propriety of the representation
you describe turns on whether or not the matter before the court
is uncontested.  Under the facts you have presented, it is the
opinion of the committee that, although the testimony to be
offered by the attorney relates to the central issue of the case,
it is being offered in an uncontested matter given the
defendant's failure to appear.  Furthermore, since the testimony
is only offered after the defendant fails to appear, there is no
reason to believe that substantial evidence will be offered in
opposition to the attorney's testimony.  Thus, the committee
opines that it is not improper for an attorney to be placed under
oath and testify as to the accuracy of a collection client's
account, when the matter is considered uncontested as a result of
the defendant's failure to appear.

Committee Opinion
September 16, 1991