Legal Ethics Opinion #1539

Attorney As Witness: Attorney As Witness Testifying To Impeach
Arresting Officer's Testimony

You have presented a hypothetical situation in which an attorney
was contacted by a client for possible representation on a
boating under the influence of alcohol charge, as well as
companion charges of assault on a police officer and cross-
warrants against the police officer in question.  The attorney
advised the client that he would probably be available to
represent him on the charges, however, the attorney was not
retained at that time.

You indicate that, shortly after the above conversation, the
attorney was present in one of the circuit court rooms of the
relevant jurisdiction, with approximately 25 to 30 other persons,
and overheard the arresting officer in the client's case explain
loudly to a Virginia state trooper the events of the boating
incident. You advise that the attorney did not intend to overhear
the conversation.  Furthermore, you indicate that the arresting
officer's statements led the attorney to believe that he might
become a necessary witness in the client's case, depending on the
arresting officer's testimony at trial.  

You indicate that, several days later, the attorney encountered a
police officer/ personal friend/former client who had previously
arrested the client for alcohol-related offenses.  The police
officer/friend began to tell the attorney that he had seen the
client on the night of his arrest and that he had appeared
"messed up".  You indicate that previously, the client had
advised the attorney that he had seen the police officer/friend
that evening across the room (10 to 15 feet away) when he was in
the precinct lock-up.  Furthermore, the client had also told the
attorney that he had not ingested any alcohol for at least 24
hours prior to his arrest.  When the attorney informed the police
officer/friend that the client's story was that the officer was
no closer than 10 or 15 feet away, the police officer indicated
that he "was not close enough to smell any odor or alcohol", but
knew that the client "had a real glassy-eyed stare".

When, subsequently, the police officer appeared as a potential
witness for the Commonwealth at the first trial date, the
attorney withdrew from representation of the client and referred
him to another attorney for trial at the General District Court
level.

The client has since indicated to the attorney that he is
dissatisfied with the services of the attorney to whom he was
referred and now wants the attorney to represent him in the
matter.
 
You have asked the committee to opine whether, under the facts of
the inquiry, the attorney may accept representation of the
client.

The appropriate and controlling Disciplinary Rule related to your
inquiry is DR 5-101(B), which states 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 undertake the
employment and he or a lawyer in his firm may testify under
certain limited, enumerated circumstances.  Further guidance may
be found in Ethical Consideration 5-9, which provides that "a[n]
advocate who becomes a witness is in the unseemly and ineffective
position of arguing his own credibility. The roles of an advocate
and of a witness are inconsistent ..."; and Ethical Consideration
5-10, which exhorts that "[w]here the question arises, doubts
should be resolved in favor of the lawyer testifying and against
his becoming or continuing as an advocate."
  
The committee is of the opinion that, under DR 5-101(B), it would
be improper for the attorney to accept representation of the
client under the circumstances where the attorney knows or it is
obvious that he or a lawyer in his firm ought to be called as a
witness.  From the facts presented, it appears to the committee
that the attorney has been privy to his client's, the arresting
officer's, and the police officer/friend's versions of the events
and that the client's and police officer/friend's stories are
clearly in conflict. In addition, the committee finds that none
of the exceptions enumerated in DR 5-101(B)(1)-(3) are applicable
in the circumstances described.  See LEOs #462, #723. 

Committee Opinion
June 22, 1993