Informal Opinion Number: 990148

QUESTION: Attorney represented a client in litigation. A settlement was reached. Subsequently, Attorney´s client filed a motion to set aside, based on fraudulent acts by the other party relating to the settlement. Opposing counsel has indicated that Attorney will be called as a witness. Attorney is a necessary witness. May Attorney take depositions in the case?
ANSWER: Under Rule 4-3.7, Attorney is prohibited from acting as an “advocate at trial´, since Attorney is a necessary witness. “At trial” does not include depositions. However, Rule 4-1.7(b) prohibits Attorney from acting in a representative capacity at any deposition or other pretrial matter in which Attorney´s own testimony or credibility is involved. Another attorney in Attorney´s firm may act as an advocate at trial, although Attorney will be a witness.

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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