The Florida Bar
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PROFESSIONAL ETHICS OF THE FLORIDA BAR

OPINION 72-2
February 11, 1972

An attorney need not withdraw from representation of a client simply because he expects to be called to testify by his adversary; rather, he may continue the representation until it is apparent that his testimony is or may be prejudicial to his client.

Canon: 19, old Canons of Professional Ethics
CPR: DR 5-102(B)
Opinion: 64-39
Misc: Drinker, Legal Ethics, p. 159

Chairman Clarkson stated the opinion of the committee:

A law firm has represented a particular client for over 15 years. The client has considered Partner A to be his personal counsel.

A civil action was instituted against the client for recovery of a real estate broker's commission. The firm undertook defense of the action. Partner B, the firm's trial partner, has been primarily responsible for the defense and will handle the trial.

At the time defense of the action was assumed, the firm had no reason to anticipate one of its members would be called as a witness in the cause. Plaintiff's counsel, however, took the deposition of Partner A and then gave notice he would be called by the plaintiff as a witness at the trial. Although Partner A had no knowledge of the transaction out of which the brokerage claim arose, apparently he was at the periphery of beginning negotiations which never culminated in a sale by his client.

Under these circumstances Partner B seeks our advice whether the firm may continue as counsel in the cause.

An attorney need not withdraw from representation of a client simply because he expects to be called to testify by his adversary. Florida Opinion 64-39. Drinker, Legal Ethics, p. 159, held that former Canon 19 was not applicable where the lawyer was called by his adversary. The CPR carries forward this distinction. DR 5-102(B) provides:

If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm may be called as a witness other than on behalf of his client, he may continue the representation until it is apparent that his testimony is or may be prejudicial to his client.

A Committee footnote to the rule emphasizes that the restriction on giving testimony “was not designed to permit a lawyer to call opposing counsel as a witness and thereby disqualify him as counsel.”

The facts presented with this inquiry have demonstrated to our satisfaction that Partner A's testimony will not be prejudicial to his client, nor does it appear there is any disagreement between Partner A and his client as to the facts at issue.

The Committee has unanimously concluded that the firm may continue as counsel in the pending action.


[Revised: 08-24-2011]