Should a law firm accept and continue employment on behalf of all Defendants in a suit brought against multiple Defendants, one of whom is a member of such Law Firm, when it is known that such Law Firm member will be a witness under the facts stated below?
Plaintiff has brought suit against four Defendants, one of whom is a member of such Law Firm. It is known that such Law Firm member, who is one of Defendants, will be a witness on contested material fact issues affecting all Defendants, as well as a witness on contested material fact issues involved in the counterclaim against Plaintiff of one of the other Defendants in the suit. It is assumed that none of the exceptions enumerated in DR 5-101(B) are applicable to these facts. It is further assumed that such facts concerning such Law Firm member being a witness on all such contested issues are known at the time of the proffered employment of the Law Firm on behalf of all four Defendants.
DR 5-101(B) proscribes employment by the Law Firm under the facts stated above. DR 5-102 is not applicable to such facts because it is known before employment, and not learned thereafter, that such member of the Law Firm would be such a witness. See Ethics Opinion 363 (1973). The facts stated in Ethics Opinion 368 (1974) are distinguishable from the present facts because, in Opinion 368, representation of a law firm member who was a party witness was approved but representation by the firm of other parties was not then addressed.