OPINION 468
March 1991

Questions Presented

1. Can a husband who is an attorney represent his wife in a matter in which he is not a named party and where he shares no common liability with his wife but in which he will likely testify as a witness for his wife?

2. Can a husband who is an attorney represent his wife in a matter in which he is not a named party but in which he shares common liability and interests with his wife, and in which will necessarily appear as a witness for his wife?

3. Is it ethically permissible for an attorney husband who represents his wife successfully in a suit to accept attorneys fees awarded by the court, if otherwise legally entitled to them?

Conclusions

Provided that the attorney's wife would experience substantial hardship if the attorney did not represent her and provided that required notification is given to opposing counsel, all questions are answered in the affirmative for the reasons discussed below.

Facts

Attorney A is currently married to Mrs. A. Mrs. A is not an attorney. She was previously married to Mr. B, by whom she had a child. In a divorce action, she was appointed managing conservator. Mr. B was appointed possessory conservator of the child and the Court ordered Mr. B to pay child support. Mrs. A is not employed outside the home, and has no income other than her community share in Attorney A's income, except for the child support paid by Mr. B.

Mr. B has filed a motion to modify requesting that his visitation schedule be modified and that his child support payment be reduced. She counter-filed with her own motion asking that his relief be denied, that the child support payments be increased, and that his visitation rights be limited. It is certain, because of the nature of the matter, that attorney A will appear as a witness in the case. Attorney A is not a named party in the modification action.

In a matter unrelated to the litigation between Mrs. A and Mr. B, Mrs. A has incurred a community debt during her marriage to Attorney A. Although the debt was incurred solely in her name, there is no doubt that the debt is a community obligation. Also, the creditor has brought suit only against Mrs. A. Because Attorney A has been involved in the dealings between Mrs. A and the creditor, it will be necessary for Attorney A to appear as a witness in the case on his wife's behalf.

Mrs. A has asked her husband to represent her in both matters. If he were to appear as counsel for her, no fee would be charged by Attorney A. Opposing counsel and the courts would be informed of the relationship between Mrs. A and Attorney A.

Discussion

The Texas Disciplinary Rules Of Professional Conduct, effective January 1, 1990, prohibited an attorney from accepting or continuing employment in a matter if (s)he knows or believes that (s)he is or may be a witness necessary to establish an essential fact on behalf of the client. Supreme Court of Texas, Rules Governing The State Bar Of Texas Art. X, Section 9, Rule 3.08 (1990). However, there are five exceptions to this general prohibition. Three of those exceptions apply where the testimony of the advocate-witness (1) relates to an uncontested issue, (2) relates solely to a matter of mere formality, or (3) relates to the nature and value of legal services rendered in the case. (Id., Section 3.08(a) (1)-(3).) The fourth exception applies where the lawyer is a party to the action and is appearing pro se. The facts in this case are that the advocate-husband is not a named party to the suit, although in one case he was involved in the negotiation between the parties and shares common liability and interests with his wife. On its face the answer seems to be dictated by the fact that the husband is not a party. Although the representation would most probably confer direct benefit to his wife (named party), it is equally clear that if the husband advocate were a named party, exception 4 would apply at least to his representation of himself. (Id., Rule 3.08 (a)(4).)

One is entitled to be represented by counsel of his/her own selection. (See Swartz v. Swartz, 76 S.W.2d 1071, 1072 (Tex. Civ. App.- Dallas 1934, no writ).) Former State Bar Disciplinary Rule 5-101(B)(4) allowed the attorney to represent a client as to any matter, if refusal would otherwise work a substantial hardship to the client because of the distinctive value of the attorney to such client. (Supreme Court Of Texas, Rules Governing The State Bar Of Texas Art. X, Section 9, DR 5-101(B) [Texas Code Of Professional Responsibility], (repealed January 1, 1990).)

Currently Rule 3.08 provides that an attorney may be counsel for a client as well as a witness at trial if the attorney has promptly notified opposing counsel of his/her dual role and advised him/her that disqualification would work substantial hardship on the client. (Id., 3.08 (a)(5).) The hardship standard is applicable in both versions of the rules. The Texas Supreme Court recently held that the right to have counsel of one's choosing can be restricted only if the opposing party can show actual prejudice or other compelling reasons for disqualifying such chosen representative. (Ayers v. Canales, 790 S.W.2d Section 4 (Tex. 1990).) The purposes of Rule 3.08 are to insure (1) that a client's case is not compromised by being represented by a lawyer who could be a more effective witness for the client by not also serving as an advocate, (2) that the client not be burdened by counsel who may have to offer testimony that is substantially adverse to the client's cause (3) to avoid confusion for the finder of fact and (4) to avoid prejudice to the opposing party that can arise from a single person playing dual roles of advocate and witness.

The husband attorney may therefore represent his wife in both actions provided he complies with Rule 3.08, i.e., gives prompt notice to opposing attorney that he/she will testify and that disqualification will work a substantial hardship on client (Id., Rule 3.08 (a)(5).)

As to attorney fees, if the attorney husband can ethically represent his wife in this matter, there is no ethical reason to prohibit his receiving attorney's fees if otherwise legally entitled to them.