The Florida Bar
January 23, 1975
A lawyer representing several clients in actions to foreclose a chattel mortgage and prosecute a shareholders' derivative action is not obligated to withdraw when, after years of litigation, opposing counsel names the lawyer as a witness.

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

Vice Chairman Daniels stated the opinion of the committee:

A lawyer was retained on behalf of several clients to foreclose a chattel mortgage and prosecute a shareholders' derivative action. After such actions were commenced, a counterclaim was filed asserting various tort claims against the plaintiffs. While the litigation was pending, one of the plaintiffs died and the lawyer was named executor of his estate.

The litigation produced several appellate proceedings and after several years of litigation counsel for the defendants-counterclaimants named counsel for plaintiffs and one of his associates as witnesses.

The inquiring lawyer-executor asks: (1) if he may ethically waive the lawyer-client privilege; and (2) whether he can ethically continue as counsel in the cause.

Whether an executor is legally entitled to assert or waive the lawyer-client privilege after the death of the client is a question of law for the courts to determine. However, assuming that the executor has the legal right to assert or waive the privilege it is clear that there is no ethical impediment in doing so. In those cases where the executor may lawfully claim or waive the privilege, his ethical duty is simply to do whatever he deems in his former client's best interests.

Under the facts presented, the Committee is likewise of the opinion that the inquiring lawyer is not required to withdraw as counsel of record in the pending litigation. The inquirer does not believe that he or any lawyer in his firm ought to be called as a witness and it is not contemplated that they will testify unless called to the stand by opposing counsel.

In Drinker, Legal Ethics , p. 159, the author states that former Canon 19 "is not applicable where the lawyer is called by his adversary." Present DR 5-102(B) should not be construed as requiring withdrawal where the lawyers involved ought not be called as witnesses but are in fact called as witnesses by opposing counsel. This is particularly true when, as here, it would cause considerable hardship and added expense to clients who would have to hire new counsel to step into complex appellate and trial proceedings which have been pending for more than three years.

The Committee leaves for future determination the question whether DR 5-102(B) should be construed as requiring withdrawal of a lawyer who ought to be called a a witness but does not contemplate taking the stand unless called by counsel representing another party in the cause. Whatever the rule may be in that situation, it is clear that a client should not be deprived of effective representation by counsel of his own choosing merely because his lawyer is called as a witness in litigation in which the lawyer has no personal knowledge relevant to any material matter of substance in the cause.

[Revised: 08-24-2011]