Informal Opinion Number: 2023-04

Adoption Date: April 26, 2023

Rules: 4-3.7
Lawyer as Witness
Subject: Lawyer as Witness
Summary: lawyer as witness when representing client in order of protection

Question: Lawyer represents Client in seeking an order of protection, and assisted Client in completing paperwork for the petition such that portions are in the handwriting of Lawyer. Opposing Counsel claims that Lawyer is now a necessary witness and files a Motion to Disqualify Lawyer. Lawyer asks if there is an issue in assisting future clients in drafting order of protection pleadings in a similar manner.

Answer: If Lawyer is representing Client, Lawyer may assist Client in carrying out the objectives of that representation pursuant to Rule 4-1.2 (Scope of Representation). Whether Lawyer will be considered to be a “necessary witness” for the purposes of Rule 4-3.7 (Lawyer as Witness) is really a question of law and fact outside the Rules of Professional Conduct and must be determined by the Court. See e.g., Missouri Informal Opinions 2015-06, 2014-03, 20040012, 20000234, 990148, 980098, and 950226. In examining whether Lawyer will be a “necessary witness” for the purposes of Rule 4-3.7, in addition to substantive law, Lawyer should consider the guidance provided in the Comments to Rule 4-3.7, specifically Comment [2] as it addresses the possibility of the tribunal being misled or confused by the lawyer’s role in the matter or opposing party’s right to object if the combination of roles by Lawyer may prejudice that party’s rights in the litigation. Comment [4] to Rule 4-3.7, provides factors to be considered in balancing the interest of client, tribunal and opposing party, and states: “[w]hether the tribunal is likely to be misled or the opposing party is likely to suffer prejudice depends on the nature of the case, the importance and probable tenor of the lawyer’s testimony, and the probability that the lawyer’s testimony will conflict with that of other witnesses. Even if there is risk of such prejudice, in determining whether the lawyer should be disqualified, due regard must be given to the effect of disqualification on the lawyer’s client.”

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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