The Florida Bar
OPINION 84-4An attorney who is a shareholder in an incorporated law firm may represent the firm at trial in a suit against a former client, for attorney's fees even though other shareholders will be called as witnesses on behalf of the firm.
September 15, 1984
September 15, 1984
CPR: DR 5-101; DR 5-102
Vice Chairman Proctor stated the opinion of the committee:
An attorney who is a shareholder in an incorporated law firm inquires whether she may ethically represent her law firm as trial counsel in a suit for collection of attorney's fees against a former corporate client and certain individuals who are shareholders in that corporation, in which suit three other shareholders in the inquiring attorney's firm will be witnesses at trial. An outside witness will be the expert witness on the value of the legal services rendered, and the three fellow shareholders of the inquiring attorney will testify to the services provided to the corporate defendant and the individual defendants, and how those services benefited the individual defendants. The inquiring attorney asserts that the only contested issue in the action is whether the legal services rendered benefited the individual defendants.
The Committee has concluded that the facts and circumstances involved in this inquiry are such that the inquiring attorney can ethically represent her law firm in an action against a former client of the law firm for the collection of attorney's fees.
DR 5-101 provides that a lawyer refuse employment in contemplated or pending litigation if he or she knows that he or she or a lawyer in his or her firm ought to be called as a witness. Likewise, DR 5-102(A) requires that a lawyer and his or her firm withdraw from conducting a trial when it is obvious that he or she or a member of his or her law firm will be called as a witness on behalf of a client . It appears that a primary basis or rationale for this longstanding rule, which is commonly referred to as the "advocate-witness rule," is to preclude a perception by the public that a lawyer in his capacity as a witness is distorting the truth for the sake of his client. There is no dearth of judicial and bar association committee opinions and discussions pertaining to the advocate-witness rule and its application to a multiplicity of situations. We do not, however, feel that the rule is applicable in the instant situation.
If the inquiring attorney was a sole practitioner, we believe that she could represent herself in a suit for collection of attorney's fees owed to her. In such a case we do not think that she would be accepting "employment" as we think that term should be interpreted under DR 5-101(B), nor do we think such a situation would involve a "client" as we think that term should be interpreted under DR 5-102(A). We likewise believe that this construction, interpretation or rationale can and should be applied or utilized to obtain the same determination or result in situations involving a law partnership or an incorporated law practice. The advocate partner or shareholder should, for purposes of interpreting the strictures of DR 5-101 and DR 5-102, be construed to be representing his or her own interests, and not the interest of an independent "client" as that term is traditionally construed or used in relation to those provisions.
In conclusion, the Committee is of the opinion that neither professional ethics nor the ends of justice prohibit or preclude a law firm from representing itself by or through one of its members or shareholders in an action for collection of attorney's fees against a former client, notwithstanding that some members or shareholders of the firm will be called as witnesses in the action.