Ethics Opinion 353

By Committee on Professional Ethics

NEW YORK STATE BAR ASSOCIATION
Committee on Professional Ethics

Opinion #353 – 07/24/1974 (25-74)

Topic: Lawyer as witness
Digest: A lawyer may not act as trial counsel for another in an action in which he will be called as a witness to matters beyond mere formality but may appear pro se
Code:  DR 5-101(B); EC 5-9, 5-10

QUESTION

May a lawyer act as trial counsel for another in the litigation of a matter where it is known that he will be a witness where the lawyer is a party united in interest with another party.

OPINION

It is improper for a lawyer to act as trial counsel for another in an action where he knows he will be a witness called by one of the parties, except in the narrow circumstances set forth in DR 5-101(B) which provides:”DR 5-101(B) 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, except that he may undertake the employment and he or a lawyer in his firm may testify:'(1) If the testimony will relate solely to an uncontested matter.'(2) If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony.”(3) If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or his firm to the client.”(4) As to any matter, if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case.”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. ABA 50 (1931). See also ABA 220 (1941); ABA Inf. 396 (1961); N.Y. City 654 (1944); N.Y. City 126 (1929); N.Y. County 362 (1941); EC 5-9; EC 5-10.The rule, of course, has no application to the situation where a lawyer Is a party, for any party may appear pro se, be a witness and represent himself. He does not lose this right because he is a lawyer.

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