Opinion date: Jan. 22, 2002
Ethics issue presented:
Whether testimony by a lawyer in a matter involving a client whom the lawyer currently represents in a separate matter would disqualify the lawyer from his representation of that client.
Facts as presented by Inquirer:
Inquirer is co-counsel for a Plaintiff in an filed action (Case 1). Separately, the defendant has sued Inquirer's client for a related, but separate cause of action (Case 2). Inquirer is not representing client in the Case 2. The client is being represented in Case 2 by a lawyer from another firm, who is also co-counsel with Inquirer in Case 1. The attorney for client in the Case 2 action has asked Inquirer to testify about the circumstances that led to Case 1. Client has asked Inquirer if doing so would disqualify Inquirer from representing client in Case 1.
Rule 3.7 precludes a lawyer from being a witness and a lawyer in the same trial. Here, the testimony would be in one trial, while the representation would be in another. Inquirer was advised that Rule 3.7 would not seem to preclude the continued representation.