The Florida Bar

February 3, 1967

An attorney is not necessarily precluded from representing a client in a second case even though a record compiled in an earlier case in which the attorney testified as a witness may be pertinent to certain issues developing in the second case, including res adjudicata.

Canon: 19
Opinion: 66-63

Chairman MacDonald stated the opinion of the committee:

The inquiring attorney had served as counsel for a corporation. A suit by a stockholder was filed against the corporation, and in view of the likelihood that his testimony would be required the inquirer recommended that the corporation retain other counsel, which step was taken. During the pendency of this litigation a second suit was filed against the corporation by the same stockholder, and the chief stockholder of the corporation was also joined as a defendant. The two suits were based upon alleged breaches of separate contracts. The corporation and the stockholder were represented in the second suit by the attorney who had assumed the representation of the corporation in the first case at the recommendation of the inquirer.

Although the second case remained dormant, the first case proceeded to trial, verdict and judgment for the defendant. During the trial the inquirer testified as a witness for the defendant. Subsequently the attorney who had been representing the corporation and the chief stockholder left the private practice of law for government service. At this point the dormant second suit sprang to life and it has become necessary for the defendants to procure counsel. They have requested that the inquirer represent them. It is now clear that his testimony as a witness will not be required in the second case. However, it is possible that the record made in the first case, including the testimony of the inquirer, would be pertinent to certain issues which may develop in the second case, including the possible defense of res adjudicata, or a possible counterclaim for malicious prosecution. In essence we are asked whether the effect of Canon 19, regulating the testimony of counsel, is such as to preclude the representation of the defendants in the second case. As more fully discussed in our recent Opinion 66-63, and the various authorities therein cited, the interpretation of Canon 19 has been a continuing source of difficulty for those charged with the task of rendering advisory ethical opinions. At the very least, however, we think that it is clear that Canon 19 was not intended to universally preclude representations in situations in which the lawyer had given testimony. Thus in the instant situation the interrelationship of the cases would not in our judgment serve to disqualify the lawyer from representation of the defendants in the second case so long as he did not become a witness therein. It, of course, is not inconceivable that the effect of his testimony in the first case could become such a source of legal or factual dispute that good taste or the principles of sound advocacy might dictate retention of associate counsel. Accordingly, it might be appropriate for the attorney to discuss in advance with the defendants these considerations.

[Revised: 08-24-2011]