Informal Opinion Number: 20000170

Attorney represents Respondent in a pending post-dissolution matter in which both Petitioner and Respondent have filed Motions to Modify. Attorney personally witnessed Petitioner abuse one of the minor children involved. After witnessing the incident, Attorney called Respondent and reported the incident and Attorney also contacted the local police department. Criminal charges were filed and Petitioner plead not guilty. Attorney is a necessary witness in both the criminal trial and the post-dissolution hearing.
Question 1. Can Attorney represent Respondent as an advocate at the evidentiary hearing of the post-dissolution matter and still take the stand to testify about the incident?
Question 2. Is Attorney precluded from appearing as an advocate for Respondent during the entire evidentiary hearing or may another attorney who is a member of Attorney´s firm appear as an advocate for either (a) the entire hearing or (b) for the limited purpose of appearing as the advocate for Respondent during Attorney´s testimony and during any opening or closing arguments on the pending Motion?
ANSWER: Under the circumstances Attorney has described, it is inappropriate for Attorney to be an advocate at trial in this matter. However, under Rule 4-3.7, another member of Attorney´s firm may serve as the advocate at trial. Attorney may continue to participate in the case, including being present at trial, unless the judge excludes witnesses. Attorney may participate, as counsel, in pre-trial matters, as long as they are not matters that involve Attorney´s role as a witness or Attorney´s credibility.

Informal Opinions are ethics advisory opinions issued by the Office of Legal Ethics Counsel to members of the Bar about Rule 4 (Rules of Professional Conduct), Rule 5 (Complaints and Proceedings Thereon), and Rule 6 (Fees to Practice Law) pursuant to Missouri Supreme Court Rule 5.30(c). Written summaries of select Informal Opinions are published for informational purposes as determined by the Advisory Committee of the Supreme Court of Missouri pursuant to Rule 5.30(c). Informal opinion summaries are advisory in nature and are not binding. These opinions are published as an educational service and do not constitute legal advice.

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