Ethics Advisory Opinion No. 12-01

UTAH STATE BAR ETHICS ADVISORY OPINION COMMITTEE

Opinion No. 12-01
Issued January 10, 2012

ISSUE

1. Three related questions are before the Committee. The attorney states that she separately represented a woman and a man (the “wife” and “husband,” respectively), both prior to their marriage. She subsequently represented both parties after they were married. The parties subsequently went to trial seeking a divorce (the “divorce”). The first question is whether representation of the wife, prior to the marriage of the parties, in litigation (the “separate action”) constitutes a conflict which would preclude the attorney from representing the husband on appeal in the divorce? Second, does the fact that the attorney testified at the divorce trial as a percipient witness, preclude her from representing the husband on appeal. Third, does representation of the wife in litigation involving both husband and wife against a third party during the course of their marriage (the “joint litigation”), wherein, notwithstanding the attorney’s vigorous but unsuccessful advocacy of the wife’s position, the wife was dismissed from the case, preclude the attorney from representing the husband on appeal in the divorce, particularly where the attorney now believes the trial court was correct in dismissing the wife from the joint litigation?
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04-02 – May a plaintiff’s lawyer continue to represent the plaintiff in a legal malpractice action when opposing counsel has announced an intention to call plaintiff’s lawyer as a witness?

April 19, 2004
¶1 ISSUE:
May a plaintiff’s lawyer continue to represent the plaintiff in a legal malpractice action when opposing counsel has announced an intention to call plaintiff’s lawyer as a witness?

¶2 OPINION: There is no per se disqualification of a lawyer in a case where she may be called as a witness. The lawyer must determine whether, under the facts of the case, she is a “necessary witness” in the litigation under Rule 3.7. If she is, and if disqualification of the lawyer would not work a substantial hardship on the client, she must withdraw prior to trial. If the lawyer does not withdraw, the lawyer must insure that the client’s interests are and can be protected in a timely manner. This could include the filing of a motion in limine or other pleading to resolve the issue prior to trial. Concurrently, the lawyer must determine if there is a conflict of interest under Rule 1.7. (more…)