OPINION 234
May 1961

APPEARANCE OF AN ATTORNEY AS WITNESS FOR CLIENT – TRIAL CONDUCTED BY ATTORNEY’S LAW PARTNER An attorney may not ethically represent a client in a litigated matter in which the attorney’s law partner will appear as a material witness.

Canon 16.

Question

Is it unethical for attorney A to represent the proponents of a will and beneficiaries of a deed and contract in the following situation?

A’s law partner, B, drafted a will, deed and contract for a client. After death of the client, the instruments were attacked on the alleged grounds of fraud, undue influence and mental incapacity of the deceased client when the instruments were executed. B’s testimony will obviously be important in establishing the mental capacity at that time and to establish the circumstance surrounding the execution of the instruments. B will not appear in the case as attorney.

Opinion

It is improper for a lawyer to accept a case knowing he will be a material witness, even though he may testify in a case in which he is representing a party provided the necessity therefore arose during trial. See Texas Canon 16. B is a material witness in this situation. Generally speaking, one member of a law firm can perform no act which his law partner cannot ethically perform. See A.B.A. Opinion 33 and Texas Opinions 187, 195 and 197. Therefore, the majority of the committee members are of the opinion that it is a violation of Texas Canon 16 for A to accept such employment in this situation. See A.B.A. Opinion 50, involving a very similar fact situation. And cf. Texas Opinion 208.

A minority of the committee believes the limited modification contained in A.B.A. Opinion 220, involving a similar situation, to be applicable: although B is disqualified, his partner, A, is not disqualified because (1) B’s testimony is not inconsistent with the client’s position, (2) B’s testimony relates to matters occuring during the course of his professional duties, and (3) to forbid A to represent the client would deprive the client of the knowledge and experience of a firm having intimate familiarity with the details of the matters in litigation. Accordingly, the minority would hold that A is not disqualified and acceptance of the case should be left to the good taste and judgment of A. (5-4.)