OPINION 363
March 1973

ATTORNEY AS WITNESS Attorney should 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 witness except under certain circumstances.

DR 5-101,  DR 5-102.

Question

May a law firm accept employment in a lawsuit where one of the partners could be a witness?

Opinion

DR 5-101(B) of the Code of Professional Responsibility provides as follows:

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:

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. (Underlining ours)

DR 5-102 of the Code of Professional Responsibility provides as follows:

(A) 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 his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in DR 5-101(B)(1) through (4).

(B) If, after undertaking employment in contemplated or pending litigation, a lawyer 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. (Italics ours)

We believe the above mentioned Disciplinary Rules clearly set out the circumstances in which a lawyer may accept employment or continue his employment when he ought to be a witness or when he learns that he may be a witness. (10-0).