QUESTION: Attorney was witness to an incident on a train, which resulted in a lawsuit. Plaintiff wants Attorney to serve as his counsel. The testimony offered by Attorney would be identical to the eyewitness account of his client. May Attorney serve as Plaintiff's counsel?

ANSWER: Under Rule 4-3.7, Attorney shall not act as an advocate at trial, if he is likely to be a necessary witness. If Attorney does not plan or anticipate being a witness, he could act as an advocate at trial. If, during the course of the trial, Attorney becomes a necessary witness, it would be up to the judge whether the hardship provision of 3.7(a)(3) would apply. The possible conflict under Rule 4-1.7 is understood to be a potential conflict rather than an actual one. If Attorney and client anticipate any testimony each gives will be consistent, the client can waive the potential conflict that their testimony will unexpectedly diverge at trial. If, however, Attorney believes his testimony will be inconsistent with his client's testimony, Attorney has a conflict that is not waivable.

QUESTION: Attorney represents Plaintiff in a long running case. Defendant has been unhappy with various rulings and statements by the judge involved for some time. A motion for change of judge has been filed due to bias. Defendant has subpoenaed Attorney directing Attorney to appear as a witness at the hearing. The matter does not relate to fees. Plaintiff has indicated that it would be a substantial hardship to retain other counsel. Would Attorney violate Rule 4-3.7 by acting as an advocate at the hearing? ANSWER: The information Attorney has provided does not indicate that Attorney is a necessary witness. If Attorney is a necessary witness, under Rule 4-3.7, Attorney may not act as an advocate at trial or in any proceeding in which Attorney will actually testify. Unless Attorney believes that Attorney is a necessary witness, that determination will be for the trial court.

QUESTION: Attorney represents Respondent in a pending post-dissolution matter in which both Petitioner and Respondent have filed Motions to Modify. Attorney personally witnessed Petitioner abuse one of the minor children involved. After witnessing the incident, Attorney called Respondent and reported the incident and Attorney also contacted the local police department. Criminal charges were filed and Petitioner plead not guilty. Attorney is a necessary witness in both the criminal trial and the post-dissolution hearing. Question 1. Can Attorney represent Respondent as an advocate at the evidentiary hearing of the post-dissolution matter and still take the stand to testify about the incident? Question 2. Is Attorney precluded from appearing as an advocate for Respondent during the entire evidentiary hearing or may another attorney who is a member of Attorney´s firm appear as an advocate for either (a) the entire hearing or (b) for the limited purpose of appearing as the advocate for Respondent during Attorney´s testimony and during any opening or closing arguments on the pending Motion? ANSWER: Under the circumstances Attorney has described, it is inappropriate for Attorney to be an advocate at trial in this matter. However, under Rule 4-3.7, another member of Attorney´s firm may serve as the advocate at trial. Attorney may continue to participate in the case, including being present at trial, unless the judge excludes witnesses. Attorney may participate, as counsel, in pre-trial matters, as long as they are not matters that involve Attorney´s role as a witness or Attorney´s credibility.

QUESTION: Attorney´s child was involved in a car accident as a passenger. May Attorney represent Attorney´s minor child in a claim for damages just as Attorney would for someone unrelated? If so, is Attorney entitled to a contingent fee based upon the recovery? Would it make a difference if Attorney represented Attorney´s child only up to the point where the claim was settled against both insurance carriers, and if a lawsuit needed to be filed, Attorney involved other counsel in the case at that time? ANSWER: Based solely on the information Attorney has provided, Attorney may represent Attorney´s child without violating any ethical provisions. However, if Attorney is likely to be a necessary witness, Attorney would violate Rule 4-3.7, if Attorney acted as an advocate at trial. Attorney may represent Attorney´s child on a contingent fee basis. Attorney would need to enter into a written contract with the next friend, in order to comply with Rule 4-1.5(c).

QUESTION: Attorney originally entered an appearance on behalf of a client to expedite the filing of a petition for dissolution of marriage. Client then hired Attorney B. Attorney B entered an appearance and handled the case through trial. Attorney never withdrew as counsel. Attorney was called as a witness in the matter and testified. No objection was raised as to Attorney´s testimony at the time of trial. At the conclusion of the trial, an appeal was filed. Attorney C was hired to handle the appeal. The case has been briefed, but Attorney C has now withdrawn. Does Rule 4-3.7 prohibit Attorney from representing the client through the conclusion of the appeal? ANSWER: Attorney will not violate Rule 4-3.7 by representing Attorney´s client through the conclusion of the appeal. If the case is remanded for further trial proceedings and Attorney´s testimony is again required, Attorney may not act as an advocate at trial.

QUESTION: Attorney is the named plaintiff in a class action lawsuit now pending. Attorney is also co-counsel of record. Attorney has no intention, as plaintiff, of being an advocate at trial or during any proceeding wherein Attorney´s testimony may be required. Attorney fully intends to only be a plaintiff and witness at trial. The attorneys for the defendants have filed a motion to disqualify Attorney, alleging that Attorney cannot serve as plaintiff and co-counsel at the same time. Is this a violation of the ethical rules? ANSWER: Based upon the information provided, Attorney would not violate Rule 4-3.7 by remaining as counsel of record in the case. This office cannot address the issue of disqualification. The decision on disqualification belongs to the judge before whom the case is pending.

QUESTION: Attorney represented a client in litigation. A settlement was reached. Subsequently, Attorney´s client filed a motion to set aside, based on fraudulent acts by the other party relating to the settlement. Opposing counsel has indicated that Attorney will be called as a witness. Attorney is a necessary witness. May Attorney take depositions in the case? ANSWER: Under Rule 4-3.7, Attorney is prohibited from acting as an "advocate at trial´, since Attorney is a necessary witness. "At trial" does not include depositions. However, Rule 4-1.7(b) prohibits Attorney from acting in a representative capacity at any deposition or other pretrial matter in which Attorney´s own testimony or credibility is involved. Another attorney in Attorney´s firm may act as an advocate at trial, although Attorney will be a witness.

QUESTION: Attorney represents a public governmental body. An individual has requested certain documents in Attorney´s possession to be disclosed. Attorney is of the opinion that the documents are closed records. Attorney has advised the client and the client has told the individual that the records cannot be viewed or copied. The individual may bring suit to try to obtain the documents. Would it be ethical for Attorney to represent the client in the case? ANSWER: Under Rule 4-3.7, if Attorney is likely to be a necessary witness, Attorney may not be an advocate, at trial. If, in the course of the litigation, it becomes likely that Attorney will be a necessary witness, Attorney should make certain that another attorney is prepared to represent Attorney´s client at trial. That attorney should also be prepared to represent Attorney´s client on any matters during pre-trial which involve Attorney´s credibility, such as Attorney´s deposition. The other attorney may be from Attorney´s law firm. Attorney may represent Attorney´s client on other pre-trial matters.

QUESTION: Attorney´s firm has filed a petition to have a copy of a will admitted to probate. The will was prepared many years ago by an attorney who has now ceased practicing law. Some members of Attorney´s firm were formerly associated with that attorney and all of the former attorney´s estate planning files were transferred to Attorney´s firm. At trial, Attorney´s firm will need to produce evidence on two points through the personal testimony of Attorney or another member of Attorney´s firm. May an attorney with Attorney´s firm act as trial counsel in this proceeding? Should Attorney or the attorney who acts as a witness avoid acting as trial counsel? ANSWER: Based upon the information Attorney has provided, the two attorneys who will be witnesses should not serve as trial counsel pursuant to Rule 4-3.7. Another member of the firm may serve as trial counsel.

QUESTION: Attorney asks whether Attorney´s involvement in the trial of a case in which another member of the firm will be a witness is permissible. ANSWER: Attorney will not violate Rule 4-3.7 if Attorney tries the case and another member of Attorney´s firm testifies. The other firm attorney may participate in pretrial matters as long as those matters do not relate, in any way, to the other firm attorney´s credibility.

QUESTION: A partner in the firm is a possible witness in a suit in which the firm represents Defendant. Must the firm disqualify itself? ANSWER: Based solely on these facts, it will not be necessary for Attorney´s law firm to disqualify itself from this litigation. The partner who is likely to be a witness may participate in the preparation of the case but may not act as an advocate at trial or at any pretrial proceeding in which that partner´s credibility would be involved.

QUESTION: Attorney has been subpoenaed by the other party. Attorney is seeking to quash the subpoena. May Attorney continue to represent Attorney´s clients? ANSWER: Attorney may act as an advocate at trial if Attorney is not a witness at trial. However, if Attorney is a witness at trial, Attorney may not represent anyone at the trial. If there is another lawyer in Attorney´s office, that lawyer may represent Attorney´s clients at trial even if Attorney is a witness. If Attorney is likely to be a witness at trial, this does not prevent Attorney from continuing to represent Attorney´s clients in pretrial matters, except any matters relating to Attorney´s own credibility. This opinion does not imply any opinion on the subpoena or Attorney´s motion to quash. Those matters are within the sole province of the court.

QUESTION: Attorney represents a client in a suit regarding conduct which Attorney witnessed. The information provided by Attorney indicates that Attorney is not likely to be a witness at trial. Must Attorney withdraw? ANSWER: Rule 4-3.7(a) provides, in part, that a "lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness. . . ." Even if Attorney is likely to be a necessary witness, Attorney may continue to be an attorney of record in the case but Attorney may not be an advocate at trial. Under the circumstances described, Attorney may continue in the case as an advocate at trial. This opinion does not, in any way, affect the ability of a judge to rule on a motion to disqualify.

QUESTION: Attorney represented a client in estate planning who was previously competent but now appears incompetent. May Attorney represent client´s child in proceedings to have the client declared incompetent. This appears to be necessary for the client´s protection. May Attorney represent the child in incompetency proceedings and continue to represent the client in estate planning. If there is a conflict, can the client waive the conflict? ANSWER: Under Rule 4-1.14(b), Attorney may represent the child in a proceeding to have the former client declared incompetent. Attorney will not be able to continue to provide representation of any sort to the client once Attorney is representing a party seeking to have the client declared incompetent. In light of the fact that Attorney believes the former client to be incompetent, it will not be possible for Attorney to seek a waiver of the conflict from the client. Attorney should also consider whether there is a likelihood that Attorney will be a necessary witness in the incompetency proceedings in determining whether to represent the child in seeking to have the client declared incompetent. Attorney should consult Rule 3.7 regarding this issue.

QUESTION: Attorney represents a client in a case which was appealed and will now go to trial on remand. Opposing counsel has indicated an intention to call Attorney as a witness regarding a statement Attorney made during a conference with the judge about whether Attorney´s client was requesting attorney fees. ANSWER: If Attorney is called as a witness to testify solely about Attorney´s statement in court regarding whether Attorney´s client was requesting fees, Rule 4-3.7 would not prohibit Attorney from continuing to serve as counsel at trial. However, if Attorney´s testimony relates to any other issue, the conclusion might change. Additionally, this opinion has no effect on the discretion of the court to rule on a motion to disqualify.

QUESTION: Attorney represents a client in a personal injury case arising out of an accident. One of Attorney´s partners was a witness to the accident. Attorney does not plan to use the partner as a witness because there are other witnesses. May Attorney represent this client? ANSWER: Yes. Under Rule 4-3.7(b), it is possible that Attorney could continue to represent the client at trial even if the partner is used as a witness. In any event, Attorney must make certain that Attorney´s own interests and the interests of Attorney´s partner do not affect Attorney´s judgment in any aspect of the representation resulting in a conflict of interest under Rule 1.7(b).

QUESTION: Attorney is likely to be a witness at trial and Attorney´s deposition has been taken. Does this prevent Attorney from engaging in pre-trial discovery and arguing pre-trial motions? ANSWER: No. However, Attorney should refrain from engaging in discovery and arguing pre-trial motions which relate to Attorney´s veracity.

QUESTION: Attorney represented client at one stage of case while attorney was part of a firm. Client now wants attorney to resume representation at a later stage. Defendant indicates it "may possibly" call attorney as a witness since acts or omissions of attorney´s former firm is an issue. Must attorney withdraw at this point? ANSWER: Rule 3.7 does not require attorney to withdraw at this time. This opinion in no way affects the ability of a judge to disqualify attorney. If attorney is actually a witness, attorney would be prohibited from being an advocate at trial but would still be able to work on briefs, pleadings, etc.