OPINION 430
February 1986

Questions Presented

May an attorney employee of a district attorney's office represent without additional compensation another attorney in the office who is being sued in federal court for alleged acts as an attorney in such office if the attorney defendant ought to be called as a witness? Is such representation permissible if the attorney conducting the representation or another attorney in the office ought to be called as a witness in the case?

Discussion

Disciplinary Rule ("DR") 5-101(B) of the Texas Code of Professional Responsibility provides that a lawyer should not, with certain exceptions, accept employment in contemplated or pending litigation if the lawyer knows or it is obvious that he or a lawyer in his firm ought to be called as a witness in the case. The exceptions set forth in DR 5-101(B) are as follows: "

  1. If the testimony will relate solely to an uncontested matter. "
  2. If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony. "
  3. If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or his firm to the client. "
  4. 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."

This Committee has held that DR 5-102(A) (which applies when a lawyer learns or it is obvious after undertaking employment that he or a lawyer in his firm might be a witness on behalf of his client) is applicable to attorneys in a particular district attorney's office as if the attorneys were members of the same law firm. Texas Professional Ethics Committee Opinion 399.

This Committee has also held, in Texas Professional Ethics Committee Opinion 368, that in the case of attorneys in a law firm DR 5-101(B) does not prohibit an attorney's undertaking to represent in a lawsuit a partner or associate in the attorney's firm if the partner or associate will be a party witness in the suit. Opinion 368 does not, however, permit a lawyer to represent another lawyer in his firm in a lawsuit where a firm lawyer other than the party is expected to be a witness.

With respect to the questions presented, the provisions of the Texas Code of Professional Responsibility and the previous opinions of this Committee discussed above would not prohibit an attorney in a district attorney's office from representing another attorney in that office who is a defendant in a federal court suit relating to the defendant's actions in the district attorney's office if no lawyer in the district attorney's office other than the attorney defendant is expected to be called as a witness. However, if the representing attorney knows or it is obvious that an attorney from the district attorney's office other than the defendant attorney ought to be called as a witness, the analysis of Opinion 399 discussed above would apply and no attorney from the district attorney's office (other than the defendant attorney) could undertake to represent the defendant attorney unless one of the exceptions set forth in DR 5-101(B) was applicable.

In the event that, after an attorney in the district attorney's office has undertaken representation of the defendant attorney, the attorney learns or it is obvious that he or another attorney in the district attorney's office (other than the defendant attorney) ought to be called as a witness on behalf of the defendant attorney, DR 5-102(A) would require the attorney to withdraw from the representation unless one of the exceptions of DR 5-101(B) quoted above applies. If, after representation is commenced, the representing attorney learns or it is obvious that an attorney in the district attorney's office other than the defendant attorney may be called as a witness other than for the defendant attorney, withdrawal would not be required unless it becomes apparent that the attorney's testimony is or may be prejudicial to the interest of the defendant attorney. DR 5-102(B).

Conclusion

Under the Texas Code of Professional Responsibility one attorney in a district attorney's office may undertake representation of another attorney in the office who is a defendant in a suit in federal court relating to matters arising in the district attorney's office unless the representing attorney knows or it is obvious that he or another attorney in the office other than the defendant attorney ought to be called as a witness in the suit. If the attorney who is considering representation knows or it is obvious that an attorney other than the defendant attorney ought to be called as a witness, the Texas Code of Professional Responsibility would not permit any attorney from the district attorney's office (other than the defendant attorney) to represent the defendant attorney unless one of the exceptions set forth in
DR 5-101(B) was applicable. If the question of testimony by an attorney from the district attorney's office arises only after an attorney from such an office has undertaken the representation, the standards of DR 5-102(A) and (B) would determine whether the attorney's withdrawal would be required. No opinion is expressed by the Committee as to whether any restrictions apply under applicable federal or state law with respect to the representation that is the subject of this opinion. (9-0)