OPINION 157
June 1957

APPEARANCE OF AN ATTORNEY AS WITNESS FOR HIS CLIENT-- Where an attorney realizes shortly before trial that it will probably be necessary for him to become a witness and his attempts for postponement fail, it is not improper for him to continue to represent his client thereafter, nor after he testifies, in situations where the necessity arises during the procedure preliminary to the actual trial, provided he did not know such would be the case at the time he accepted the employment. Under the circumstances, the preliminary procedure is considered as part of the trial.

Canon 16.

Question

A suit was filed in the latter part of December, in which the Defendant filed a cross-action for rescission or the sale of real estate on the grounds of certain alleged misrepresentations. Plaintiff had the case set for trial on the following February 18th. Attorney for Defendant had had a conversation with Plaintiff at the time the sale was consummated the previous August. Plaintiff's deposition was taken on January 9th. At that time Plaintiff testified contrary to the belief of Defendant's Attorney as to the date and substance of said August conversation. At the time Defendant's attorney accepted employment he had no reason to think Plaintiff would deny the substance of such conversation but considered the matter had been so fully discussed that the facts were beyond dispute. After the deposition was taken, Defendant's attorney realized he would probably have to testify at the trial and endeavored to secure a postponement, but such postponement was successfully resisted by Plaintiff. On the trial, Defendant's attorney did testify to the substance and date of such conversation, but did not testify concerning the main issue of the rescission action, namely, the alleged misrepresentations, as to which he had no knowledge. Said attorney continued to represent Defendant to the final termination of the trial.

Was it unethical for said attorney to continue to represent Defendant after he learned he would have to testify on the trial, and after he had testified?

Opinion

Texas Canon 16 reads: "It shall be unethical for a member to accept a case when he knows that he will be a material witness, but a member may testify to any matter without being guilty of misconduct if the necessity thereof is occasioned during the trial of the case" (emphasis added).

A majority of the committee members feel that since said attorney did not know he would have to testify when he accepted the case and the necessity arose shortly before the case actually went to trial on its merits, and the attorney handling the case was familiar with it, and the Defendant probably lacked funds with which to readily secure other counsel, and a postponement of the case could not be secured, he was not in violation of Canon 16, under the particular facts of this case, and that, under these circumstances, the term "during the trial" should be given a liberal construction so as to embrace procedure preliminary to the actual trial.

It was recognized by all the members that American Canon 19 is much stricter than Texas Canon 16, and that under the opinions (especially No. 50) of the American Ethics Committee there would be a clear violation in the instant case. (5-3)