June 1991

Question Presented

Under the following facts does an attorney who is representing a plaintiff in a case have to withdraw from the case when he learns that he may be called as a witness by the defendant?


A and B were involved in negotiations regarding the contents of a proposed contract between the two parties. A, a corporate entity, was represented in these negotiations by its attorneys who had represented it for many years in other matters. B alleges that the parties ultimately entered into a valid and enforceable contract. A is seeking a determination that there is no contract between the two parties. B claims that if this matter goes to trial, A's attorney will be called as a witness because he was privy to the negotiations and, therefore, he and his law firm should recuse themselves from the case. The attorney's testimony, if any, will be mostly cumulative of other witnesses. Further, it appears that any facts which the attorney might be required to testify about will not be strongly disputed. The primary controversy relates to the legal effect of the discussions and actions of the parties. A very much desires to be represented by the same attorney and law firm that was involved in the negotiations with respect to the alleged contract because of the many years of representation by that firm.


No. First, the lawyer is not being called as a witness by his client and is not a witness "necessary to establish essential facts on behalf of his client." (Section 3.08 of the Texas Rules of Professional Conduct). Secondly, the testimony, when called by the other side, will not be adverse to the client. Rule 3.08(b). Moreover, as the Supreme Court said in its opinion in Ayres v. Canales, 790 SW2d 554 (Tex 1990): "

Comment ten to Rule 3.08, however, states that the rule should not be used as a tactical weapon to deprive the opposing party of the right to be represented by the lawyer of his or her choice because reducing the rule to such a use would subvert its purpose. See also Texas Rules of Professional Conduct, Preamble at 15. In order to prevent such misuse of the rule, the trial court should require the party seeking disqualification to demonstrate actual prejudice to itself resulting from the opposing lawyer's service in the dual roles."