20000234 | Office of Legal Ethics Counsel & Advisory Committee of the Supreme Court of Missouri

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Informal Opinion Number: 20000234

Rules: 4–3.7

Advocate

Lawyer as Witness

QUESTION: Attorney represents Plaintiff in a long running case. Defendant has been unhappy with various rulings and statements by the judge involved for some time. A motion for change of judge has been filed due to bias. Defendant has subpoenaed Attorney directing Attorney to appear as a witness at the hearing. The matter does not relate to fees. Plaintiff has indicated that it would be a substantial hardship to retain other counsel. Would Attorney violate Rule 4 dash–3.7 by acting as an advocate at the hearing?
ANSWER: The information Attorney has provided does not indicate that Attorney is a necessary witness. If Attorney is a necessary witness, under Rule 4 dash–3.7, Attorney may not act as an advocate at trial or in any proceeding in which Attorney will actually testify. Unless Attorney believes that Attorney is a necessary witness, that determination will be for the trial court.

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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