An inquiry has been made concerning the propriety of an attorney representing a partner in his law firm in litigation when the partner or other member of the firm will be called as a witness.
A partner in a law firm served as a conservator and managed the financial affairs of a ward. A non-lawyer employee of the firm forged the lawyer's signature to checks drawn on the conservator account, and thereby misappropriated funds of the ward.
The drawee bank refused to credit the conservator of the account for the forged instruments. The lawyer-conservator filed suit against the bank seeking to impose liability on it for honoring the forged instruments. The bank is resisting the suit. The lawyer-conservator will be required to testify in his suit against the bank.
Under these circumstances, it is improper for the lawyer-conservator to be represented by a member of his own law firm. Disciplinary Rule 5-101(B) provides:
A lawyer shall not accept employment in contemplated or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness ....
It does not appear that any of the exceptions to this rule apply in the present instance.
This 3rd day of September, 1981.
W. H. Lassiter
APPROVED AND ADOPTED BY THE BOARD