990175 | Office of Legal Ethics Counsel & Advisory Committee of the Supreme Court of Missouri

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Informal Opinion Number: 990175

Rules: 4–3.7

Advocate

Lawyer as Witness

Subject: Lawyer as Witness

Summary: lawyer serving as co-counsel and as witness

QUESTION: Attorney is the named plaintiff in a class action lawsuit now pending. Attorney is also co-counsel of record. Attorney has no intention, as plaintiff, of being an advocate at trial or during any proceeding wherein Attorney´s testimony may be required. Attorney fully intends to only be a plaintiff and witness at trial. The attorneys for the defendants have filed a motion to disqualify Attorney, alleging that Attorney cannot serve as plaintiff and co-counsel at the same time. Is this a violation of the ethical rules?

ANSWER: Based upon the information provided, Attorney would not violate Rule 4 dash–3.7 by remaining as counsel of record in the case. This office cannot address the issue of disqualification. The decision on disqualification belongs to the judge before whom the case is pending.

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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