Informal Opinion Number: 20040012

QUESTION: Attorney was witness to an incident on a train, which resulted in a lawsuit. Plaintiff wants Attorney to serve as his counsel. The testimony offered by Attorney would be identical to the eyewitness account of his client. May Attorney serve as Plaintiff’s counsel?
ANSWER: Under Rule 4-3.7, Attorney shall not act as an advocate at trial, if he is likely to be a necessary witness. If Attorney does not plan or anticipate being a witness, he could act as an advocate at trial. If, during the course of the trial, Attorney becomes a necessary witness, it would be up to the judge whether the hardship provision of 3.7(a)(3) would apply. The possible conflict under Rule 4-1.7 is understood to be a potential conflict rather than an actual one. If Attorney and client anticipate any testimony each gives will be consistent, the client can waive the potential conflict that their testimony will unexpectedly diverge at trial. If, however, Attorney believes his testimony will be inconsistent with his client’s testimony, Attorney has a conflict that is not waivable.

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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