Ethics Opinion

Opinion 72-2

FLORIDA BAR ETHICS OPINION
OPINION 72-2
February 11, 1972
Advisory ethics opinions are not binding.
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:
CPR:
Opinion:
Misc:

19, old Canons of Professional Ethics
DR 5-102(B)
64-39
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.