The Florida Bar
OPINION 76-26An attorney who is a stockholder in, vice president of, and attorney for a corporation that is insolvent and has been unable to employ other counsel for litigation in which the attorney will be a material witness should attempt to secure outside representation for the corporation. If he is unable to do so, he should secure a determination by the court that the facts of the case bring him within the hardship exception to the rule against an advocate testifying.
May 9, 1977
May 9, 1977
CPR: EC 5-10; DR 5-101(B)(4)
Vice Chairman Taylor stated the opinion of the committee:
An inquiring attorney is a stockholder in, vice president of, and attorney for a corporation presently involved in litigation in regard to a construction loan agreement, in negotiating and closing which the inquirer acted as a corporate officer as well as attorney and he is the only representative of the borrower present throughout the loan proceedings. His testimony is very material to the case.
The corporate borrower is insolvent and unable to employ other counsel and will, in the opinion of the inquirer, suffer substantial hardship and financial sacrifices if he is not permitted to continue to act as counsel even though a material witness in the pending litigation.
The inquirer also points out that the lender's closing attorney is a partner of the lender's attorney of record in the pending litigation.
Our Committee has no power to pass upon the conduct of the inquirer's opposing counsel.
As regards the inquirer's conduct, it is the opinion of a majority of the Committee that he should use every effort to secure representation of the client by another attorney to the extent that the case may turn upon the testimony of the inquirer.
Failing in this he should disclose all the facts to the court in the presence of opposing counsel, and, if possible, secure a determination by the court that the facts of the case bring him within DR 5-101(B)(4) and EC 5-10.
A minority of the Committee feels that the inquirer should withdraw as attorney in the litigation.