March 1974

REPRESENTATION OF LAW PARTNER OR ASSOCIATE WHO WILL BE A PARTY-WITNESS It is not improper for an attorney to represent his law partner or associate in a suit where the partner or associate will be a party-witness in such suit.

Code of Professional Responsibility. DR 5-101(B).


The fact underlying this opinion request are as follows: A has brought suit against B, C and D. One of the defendants, B, is a partner in a law firm. B as requested one of his partners to represent him in the litigation. There is no question but that B will be a material witness in the litigation and will be called upon to testify with regard to many of the contested allegations in the suit. The areas of law involved in the litigation is rather narrow and the partner B has requested to represent him has had some experience in the field. Also, because of their relationship, B has particular confidence in the partner he has requested as his attorney and he would also clearly prefer not to go outside his own law firm. While the partner in B's firm will only represent B, B's firm may receive fees from a fund controlled by another defendant. The question has been raised as to whether the representation of B by one of the members of his firm is the type of conduct or activity proscribed under the above referenced canon contained in the present Code of Professional Responsibility. A subsidiary question is whether the result would be different if B's firm were to receive no compensation for the activities of its partner in behalf of B?


The committee is of the opinion that the disciplinary rules do not prohibit an attorney from representing his law partner or associate in a suit where the law partner is a party, even though such law partner or associate is expected to be called as a witness during the trial of such cause. The committee is firmly of the opinion, however, that this would apply only in the situation where said law partner or associate is a party-witness and does not affect the prohibition as to the representation of a law partner or associate where such partner or associate is to be a fact witness only.