81-F-19 - Representation of law firm partner/witness

FORMAL ETHICS OPINION 81-F-19

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.

ETHICS COMMITTEE:

Randall Burcham
W. H. Lassiter
George Morrow

APPROVED AND ADOPTED BY THE BOARD