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?
OPINION
2. Because it does not appear to “involve” a “substantially related matter,” representation of the wife in the separate action prior to the marriage would not necessarily preclude the lawyer from representing the husband on appeal in the divorce. The mere fact of the wife’s dismissal or that the lawyer agreed or disagreed with the court’s decision dismissing her from the joint litigation involving both parties is not a determinative factor to this opinion. The fact that the lawyer testified during the divorce proceedings as a percipient witness, is likewise most likely not a relevant factor, subject to the caveats set forth in the Analysis

below. Where, however, the lawyer represented both the husband and wife against a third party in the joint litigation during the course of the marriage, the joint litigation and the divorce appear to be “substantially related” because they “involve the same transaction or legal dispute.” It would therefore be a violation of the duty of loyalty and independence under the Utah Rules of Professional Conduct for the lawyer to undertake representation of the husband on appeal in the divorce without the informed written consent of the wife.

BACKGROUND

3. Prior to the marriage of the parties involved, the attorney represented the wife in the joint litigation. The issues before court in no way involved the future husband. Subsequently the parties married. During the course of their marriage, the attorney represented both husband and wife against a third party in the joint litigation. The wife’s standing to sue was at issue in the joint litigation and in spite of the lawyer’s vigorous advocacy of her position, the court dismissed her from the litigation. The lawyer disagreed with this ruling at the time, but later came to accept the court’s decision as a correct one.
4. The couple then initiated divorce proceedings. The attorney recognized that there would be an obvious conflict and thus declined to represent either party at trial. As a result of the long standing attorney-client relationship with the husband, the attorney was called and did testify as a percipient witness regarding the husband’s procurement of certain property rights and other matters which were apparently not a violation of confidentiality or otherwise privileged under the Utah Rules of Professional Conduct. According to the attorney, she did not assume a position advocating on behalf of either party in the trial court and testified only as to non-contested issues. She represents that on appeal she would not be placed in a position of advocating her own credibility as a witness at the trial. However, representation of the husband on appeal of the divorce would perhaps, although not necessarily, require the attorney to argue that at least one of the positions, specifically in the joint litigation matter, previously advocated by the lawyer on behalf of the wife in that litigation, was incorrect.
(more…)

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.
¶3 FACTS: C, a former client of lawyer L, has sued L for legal malpractice for failure to protect client assets from waste by a former spouse in a divorce case. L’s lawyer has advised C’s current lawyer F that F will be called as a witness on the issues of apportionment and contribution for her alleged failure to protect the assets of the client she now represents.
¶4 ANALYSIS: L’s decision to call C’s current lawyer F as a witness as to the issue of responsibility of F for damages to her own client for malpractice engages Utah Rules of Professional Conduct 3.7, “Lawyer as Witness,” and 1.7, “Conflict of Interest.”
Rule 3.7, Lawyer as Witness. Rule 3.7 addresses the lawyer-witness issue and provides:
(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be necessary as a witness unless:
(1) The testimony relates to an uncontested issue;
(2) The testimony relates to the nature and value of legal services rendered in the case; or
(3) Disqualification of the lawyer would work substantial hardship on the client.
(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.
¶5 Rule 3.7 does not automatically require withdrawal.1Rather, Rule 3.7(a) provides that a lawyer may not act as an advocate at trial if she is likely to be a “necessary” witness. Whether or not this lawyer’s testimony is necessary is a fact-specific question the lawyer being summoned must resolve. If the testimony is duplicative and obtainable from other sources, her testimony may not be necessary, and the lawyer should not withdraw or should not be subject to disqualification.2 “The naming of a party’s attorney does not ipso facto render the named attorney a ‘necessary witness’ . . . nor does the availability of other competent witnesses for the same testimony automatically render the named attorney ‘unnecessary’.”3
¶6 The attorney should not continue the representation when she is or ought to be a witness with respect to issues that are not incidental or insignificant. “[A]pplication of this rule does not depend on whether an attorney will be called but rather, as the Code provides, on whether he ‘ought to be called as a witness’ in the underlying action.”4 (more…)