Legal Ethics Opinion No. 1445
Zealous Representation--Attorney As Witness: Attorney's Complaint
to Department of Animal Control to Gain Advantage in a Civil
Matter
You have presented a hypothetical situation in which an attorney
(Plaintiff A) and his wife (Plaintiff B) filed an action as prose plaintiffs against out-of-state Defendant C for breach of
contract and fraud with respect to the sale by C to A and B of a
reputed stud dog who would not breed. A and B have custody of
the dog and seek a refund of the price paid.
You indicate that, three days prior to the return date for
answering the motion for judgment, A and B were the subjects of
an investigation by law enforcement agency D (Department of
Animal Control) based on a complaint that, in a telephone
conversation between B and C approximately two months earlier and
prior to initiation of the suit, B had allegedly threatened to
harm the dog. A and B have denied threatening the dog's welfare
in any way.
Further, you advise that, during the investigation by agency D,
Investigator E informed A that the complaint had been made by
telephone by Attorney F who, it is learned, represents C. As a
result of the investigation, the dog is found to be in good
health and well cared-for. Immediately after departure of E, A
telephoned F and complained that F had an ethical obligation to
make some
independent inquiry or investigation before filing a complaint
with agency D. You indicate that F replied that she had the word
of her client, and that was all she needed, saying further that
if A had a problem with that, he knew where that could be taken,
and F would deal with it that way. You advise the committee that
no written or telephone inquiry as to the dog's welfare was
received from C or F prior to, or since, the investigation.
Subsequently, supervisory investigator G of agency D executed an
affidavit in which he stated that he received the complaint by
telephone from F on the morning of the day of the investigation.
The official investigation report of agency D listed F (with
address and telephone number) as the complainant and C as the
only witness (other than B) to the alleged threat by B.
In the complaint to D, the case was characterized as a custody
case for the dog, but the motion for judgment only asked for a
refund of the money paid and damages for fraud. The motion for
judgment was subsequently amended by A and B to add slander and
malicious prosecution, citing the complaint lodged with D and the
resulting investigation.
A demand letter was sent on the day of the investigation by F to
A and B demanding return of the dog to C, with no mention of a
refund or of concern for the dog's welfare. Three days after the
investigation, F filed a motion to quash process on behalf of C.
Subsequent to the telephone conversation between A and F, F
denied calling D or filing a complaint with D, but admitted
receiving the report of the dog's good health from D. C (in
answer to interrogatories) denied calling D on or about the day
of the investigation. In response to interrogatories which
inquired into who filed the complaint with D, F objected on the
basis of attorney-client privilege. You indicate that Answers to
the interrogatories were first served over the signature of F,
and that this practice was contrary to Rule 4:8 of the Rules of
Procedure. A separate statement signed by C, with notarization
and not attached to the answers but asserting to the truth and
accuracy of the answers, was subsequently provided to A and B by
F. A and B requested that F provide a complete set of answers,
with the notarized signature of C appearing immediately after the
last answer, to insure that there was no question that C had
reviewed and sworn to all answers.
You have requested that the committee opine as to several
questions regarding the actions of attorney F in the foregoing
circumstances.
The appropriate and controlling Disciplinary Rules related to
your inquiry are DR 2-107(A)(l) and DR 7-l02(A)(l), both of which
proscribe an attorney from accepting or continuing employment or
from taking action on behalf of his client if he knows or it is
obvious that such person wishes to make a claim for the purpose
of harassment or malicious injury to another; DR 2-l07(A)(2) and
DR 7-l02(A)(2), both of which preclude an attorney from
presenting or advancing a claim or defense in litigation that is
not warranted under existing law, unless it can be supported by
good faith argument for an extension, modification, or reversal
of existing law; DR 5-l02(A) which provides that if, after
undertaking employment in contemplated or pending litigation, a
lawyer learns or it is obvious that he or a lawyer in his firm
ought to be called as a witness on behalf of the client, he shall
withdraw from the conduct of the trial and his firm similarly may
not continue representation in the trial except in certain
limited circumstances; and DR 5-102(B) which provides that if a
lawyer in litigation 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.
The committee responds to your specific inquiries relative to the
facts you have presented as follows:
1. With regard to F's ethical obligation to make an
inquiry or investigation of the allegation prior to
filing a complaint with agency D, the committee is of
the opinion that an attorney has an ethical
responsibility to ascertain that a claim has not been
made for the purpose of harassment or malicious injury,
but rather has been formed after reasonable inquiry, is
well grounded in fact and is warranted by existing law
or a good faith argument for the extension,
modification, or reversal of existing law, pursuant to
DR 2-107 and DR 7-l02. See LEO #1190. In the
circumstances you describe, therefore, the committee is
of the opinion that an attorney has an ethical
obligation to investigate a client's claim against an
opposing party before filing a complaint with a
regulatory agency.
2. With regard to whether and when F must withdraw from
representation of C in the suit, the committee believes
that the answer to that question turns on whether it is
obvious that F may be called as a witness either for or
other than on behalf of his client. Therefore, the
committee is of the opinion that, as required by DR
5-l02(A), if the lawyer (F) learns or it is obvious
that she ought to be called as a witness on behalf of
client (C), she must withdraw from the conduct of the
trial. Furthermore, the committee opines that under
the direction of DR 5-102(B), if the lawyer learns or
it is obvious that F may be called as a witness other
than on behalf of C, F may continue representation of C
until it is apparent that F's testimony is or may be
prejudicial to C.
3. Whether it is proper or appropriate that A and B bring
a motion to disqualify F from further representation of
C is beyond the purview of the committee since the
committee does not opine or instruct as to the proper
course of trial strategy or the conduct of any segment
of a case in litigation.
4. The issue regarding whether the attorney-client
privilege can be properly asserted by F on behalf of C
relative to interrogatories inquiring into the
respective roles of F and C in the filing of the
complaint with D raises a legal question and is, thus,
beyond the purview of the committee.
Committee Opinion
January 6, 1992
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