Formal Opinion 110
(1962)
Lawyers as Witnesses

You have requested the opinion of the Committee on certain situations involving lawyers as witnesses. You have given us certain hypothetical cases and queries which we shall set forth in the order given to us followed by our opinions.

"1. A, B, C and D is a law partnership representing a client in a personal injury action. X is an employed associate of that partnership. The partnership represents a personal injury plaintiff on a basis of a contingent fee. During the trial of the case, X, the associate, is called as a witness to testify to the existence or non-existence of material facts relating to the main issues (as distinguished from purely formal facts). X did not have prior knowledge of any of these facts but went to investigate the subject of his testimony after the case arose and was referred to A, B, C and D.

"Query: Is there any difference in principle in this situation and in the situation of In Re Thorstensen’s Estate, 28 Wn. 2d. 837, and Leoas v. Dewey 33 Wn. 2d. 232, and other such similar cases?"

Opinion: The opinions of the American Bar Association and the statements of the courts and particularly our own Supreme Court indicate that Canon 19 is to be strictly construed with certain exceptions that are not applicable here. This canon reads as follows:

‘When a lawyer is a witness for his client except as to merely formal matters such as the attestation or custody of an instrument and the like, he should leave the trial of the case to other counsel. Except when essential to the ends of justice, a lawyer should avoid testifying in court in behalf of his client."

It has been held in numerous opinions that the disability of a partner in a law firm is the disability of all the partners. It is the opinion of the Committee that the same disability exists as far as employed associates of the law firm are concerned and that it is not ethical for a lawyer, his partner, or his associate to testify in court in behalf of his client except as to merely formal matters.

We believe that the same principles and logic which made the canon necessary would apply to the lawyer’s associates as well as his partner.

"2. Assume the same foregoing facts with the exception that X obtained his information prior to the occurrence giving rise to the suit.

"Query: (a) Is X forbidden to testify, or (b) should A, B, C and D undertake the employment?"

Opinion: (a) X is not only not forbidden to testify, but by proper subpoena could be required to testify and should in the interest of justice be available for any pertinent or essential testimony, but (b) the A, B, C, D firm should not undertake to represent the client whose case requires X’s testimony and if they have undertaken it, they should relinquish the case to other counsel as soon as the situation becomes apparent.

"3. Assume the same facts as in (1) except that A, B, C and D represent a client upon a per diem basis rather than upon a contingency.

"Query: (a) Is it then appropriate for X to testify as to facts learned after the occurrence? (b) should the firm remain in the case after summoning X as a witness?"

Opinion: While it is true that the A, B, C, D firm does not have the financial interest in the case when it is on a per diem basis rather than a contingent basis, it is our opinion that this does not change the ethical question and our answer to this query would be the same as in (2) above.

4. "Assume the same facts as in (3) except that X learned the facts upon which he testified prior to the occurrence in which his firm of employers is involved as counsel on the per diem basis.

"Query: What is the result as to the propriety of calling X as a witness?"

Opinion: We again reiterate that the employed associate of the A, B, C, D firm cannot ethically testify in a case for a client represented by the A, B, C, D firm and the firm, if it considers X’s testimony necessary to the case, should not undertake to represent the client in the case, or if already employed should withdraw from the case in favor of independent counsel.

[See RPC 3.7]