2015-06 | Office of Legal Ethics Counsel & Advisory Committee of the Supreme Court of Missouri

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Informal Opinion Number: 2015-06

Rules: 4–3.7; 4–1.7; 4–1.9

Advocate

Lawyer as Witness

Subject: Lawyer as Witness

Summary: lawyer as witness; necessary witness

Question: Is Attorney precluded by Rule 4 dash–3.7 from representing Client where another Member of Attorney’s firm formerly represented Client and is likely to be a necessary witness at trial, and opposing party’s claim relates to matters that occurred after Member ceased the representation and while Attorney was the sole attorney in the firm representing client?
Answer: Based on the facts presented, it appears Attorney is not likely to be a necessary witness at trial and therefore is not prohibited by Rule 4 dash–3.7 from acting as an advocate at trial. However, if Attorney is called as a witness at trial, only a court would have the right to determine if Attorney may act as an advocate at the trial. Rule 4 dash–3.7(b) also requires Attorney to consider if he is precluded from acting as an advocate at trial by Rule 4 dash–1.7 or Rule 4 dash–1.9.

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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