Inquiry is made concerning the propriety of an attorney representing an associate attorney in a litigated matter when the associate attorney will be a witness in his own behalf regarding substantive matters that are in dispute.
Disciplinary Rule 5-101(B) of the Code of Professional Responsibility prohibits, with certain exceptions, an attorney from accepting employment on behalf of a client if he or an attorney in his firm should necessarily be a witness in the matter. The reason for the prohibition rests, to a large extent, on the fact that the dual role of witness and advocate gives the appearance that the attorney's zeal as an advocate will influence his testimony as a witness.
Tennessee Formal Ethics Opinion 81-F-19 held that an attorney could not represent a partner in his law firm in litigation when the partner was conservator for a ward and would be called as a witness to testify that an employee of the law firm forged the attorney's signature to checks drawn on the conservatorship account and thereby misappropriated funds of the ward.
The interests of an independent client are not at issue in the instant inquiry and the litigation in no way involves the professional conduct of anyone in the law firm. The litigated matter involves the private interests of the associate attorney in a business venture which is not law related.
It does not appear that combining the roles of advocate and witness among the associates will prejudice the opposing party or involve a conflict of interest between the attorney and the client-associate.
Disciplinary Rule 5-101(B) was not intended to apply where the attorney is a party and necessarily a witness as to substantive matters as described herein, for any party may appear pro se, be a witness and represent himself. The attorney, as litigant, does not forfeit his right to testify in his own behalf simply because of his profession. Therefore, there is no impropriety in an attorney representing an associate in litigation involving the private and personal interests of the associate that are unrelated to his professional
interests as an attorney.
This 14th day of April, 1983.
F. Evans Harvill
Oscar B. Hofstetter, Jr.
William R. Willis
APPROVED AND ADOPTED BY THE BOARD