Year 1988 Ethics Opinions
THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK
FORMAL OPINION 1988-9
COMMITTEE ON PROFESSIONAL AND JUDICIAL ETHICS
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November 28, 1988
ACTION: Formal Opinion
OPINION:
The Committee has had occasion
twice during the past year to address the propriety of a lawyer
representing a client on the appeal of a case in which the lawyer
testified on behalf of the client at trial. Different
considerations led the Committee to find in one instance that the
appellate representation was ethically proper and in the other
instance that it was not. In this opinion, the Committee examines
the controlling principles underlying those two determinations as
a predicate to formulating a rule of general application that
will provide guidance to lawyers who face the question in the
future.
DR 5-101(B) requires a lawyer to
refuse employment in "contemplated or pending litigation
when he knows or it is obvious that he ought to be called as a
witness" on behalf of his client. DR 5-102(A) obligates a
lawyer to withdraw from the conduct of a trial if he "learns
or it is obvious that he or a lawyer in his firm ought to be
called as a witness on behalf of his client." There are four
exceptions enumerated in DR 5-101(B). n1 If any of these
exceptions is applicable, so that a lawyer/witness properly could
have continued as trial counsel, then there is no readily
apparent basis for concluding that the same exception is not
equally applicable to permit the lawyer to continue the
representation on appeal. For purposes of this opinion, the
Committee assumes that none of the exceptions is applicable.
n1 "1. If the testimony will
relate solely to an uncontested matter. 2. If the testimony will
relate solely to a matter of formality and there is no reason to
believe that substantial evidence will be offered in opposition
to the testimony. 3. If the testimony will relate solely to the
nature and value of legal services rendered in the case by the
lawyer or his firm to the client. 4. As to any matter, if refusal
would work a substantial hardship on the client because of the
distinctive value of the lawyer or his firm as counsel in the
particular case."
Consistent with the dual
prohibitions contained in DR 5-101(B) and DR 5-102(A), there is
no meaningful distinction between situations in which a
lawyer/witness is considering acceptance of an appellate
representation as opposed to withdrawal from an ongoing appellate
representation (although it is difficult to conceive of a
circumstance in which withdrawal would not have been required at
trial but would be required for the first time on the appeal).
Read literally, the language of DR
5-101 and DR 5-102 applies only to trial proceedings. n2 Problems
inherent in the dual role of advocate and witness, however, are
not confined to trial. EC 5-10 states:
Problems incident to the
lawyer-witness relationship arise at different stages; they
relate either to whether a lawyer should accept employment or
should withdraw from employment. Regardless of when the problem
arises, his decision is to be governed by the same basic
considerations.
n2 DR 5-102(A) explicitly refers
to "the conduct of the trial" and "representation
in the trial." Although DR 5-101(B) does not employ these
phrases, it clearly is addressed to trial proceedings inasmuch as
it refers to a lawyer being "called as a witness" and
to matters as to which the lawyer "may testify."
See also General Mill Supply Co.
v. SCA Services, Inc., 697 F.2d 704, 715-16 (6th Cir. 1982)
(rejecting the notion that references to the word
"trial" in the disciplinary rules under Canon 5 should
be read literally). It would be artificial to confine operation
of the lawyer-as-witness rule to representation at trial merely
because the rule speaks to the most common context in which the
problem arises.
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Not every representation on appeal
by a lawyer who appeared as a witness at trial is forbidden.
General guidance is provided by the Ethical Considerations under
Canon 5. EC 5-2 states:
A lawyer should not accept
proffered employment if his personal interests or desires will,
or there is a reasonable probability that they will, affect
adversely the advice to be given or services to be rendered the
prospective client. After accepting employment, a lawyer
carefully should refrain from acquiring a property right or
assuming a position that would tend to make his judgment less
protective of the interests of his client.
EC 5-9 addresses the specific
rationale for prohibiting a lawyer from acting as both witness
and advocate.
An advocate who becomes a witness
is in the unseemly and ineffective position of arguing his own
credibility. The roles of an advocate and of a witness are
inconsistent; the function of an advocate is to advance or argue
the cause of another, while that of a witness is to state facts
objectively (emphasis supplied).
See ABA Formal Opinion 339 (Jan.
31, 1975); MacArthur v. Bank of New York, 524 F. Supp. 1205, 1208
(S.D.N.Y. 1981). It is also possible that the jury's evaluation
of a witness' testimony may be influenced by the fact that the
witness is playing another role, namely, that of advocate, at the
trial. See International Electronics Corp. v. Flanzer, 527 F.2d
1288, 1294 (2d Cir. 1975).
Applying these principles to the
appellate process, the propriety of representation by a
lawyer/witness turns on the relationship between the lawyer's
trial testimony and the issues that ought to be briefed and
argued on appeal. This question cannot be answered simply by
examining whether the lawyer's trial testimony is consistent with
the position that the lawyer proposes to advocate for his client
on appeal. It will be difficult, if not impossible, for a lawyer
to ignore his personal interest in a case if his trial testimony
is to be an issue on the appeal. That personal interest may be
reflected in many ways on an appeal. The preparation of a
statement of facts, the selection and articulation of issues to
be briefed, the relative prominence of the treatment of different
issues and the manner in which a witness' testimony is presented
in support of legal arguments are all integral elements of
appellate representation. When a lawyer has been a witness at
trial, there is a danger that he will not possess the objectivity
regarding his own testimony necessary to the exercise of
independent professional judgment on behalf of his client on
subjects such as those enumerated above.
Consequently, the Committee
concludes that if a lawyer knows or it is obvious that the
subject matter of his trial testimony will or ought to be an
issue on appeal, then the lawyer is precluded from appearing as
appellate counsel. Application of this prophylactic rule may be
illustrated by the two inquiries considered by the Committee
during the past year and the distinctions between them that led
to opposite results.
The first inquiry was from a
lawyer who sought to brief and argue an appeal from a criminal
conviction for conspiracy. The lawyer had testified at trial on
behalf of the defendant concerning a letter the lawyer drafted
for the defendant to a group of investors allegedly defrauded by
the defendant. The lawyer testified that the letter was sent in
connection with a pending civil action to inform the investors of
the defendant's conduct and to seek their support for that
conduct. The Government identified the letter as a conspiratorial
act designed to mislead investors into not asserting their rights
against the defendant. Whether the letter constituted an overt
act in furtherance of the alleged conspiracy, and consequently
whether the defendant intended to defraud the investors by
sending the letter, were to be issues on appeal. The lawyer's
testimony was highly relevant to these issues, and therefore the
Committee concluded that he could not ethically appear as counsel
on the appeal.
While the lawyer might believe
that he could exercise independent professional judgment in
preparing the appeal, the possibility remained that he would be
tempted to vindicate his own standing and reputation following
the jury's apparent rejection of his testimony at trial. In
particular, the lawyer might adopt a strategy on appeal that
focused on rehabilitating his trial testimony rather than on
issues that would best serve the interests of his client. The
rule adopted by the Committee eliminates the need to resolve
these difficult issues of personal motivation, holding instead
that the mere connection between the lawyer's trial testimony and
the issues on appeal is sufficient to mandate disqualification.
The second inquiry considered by
the Committee was from a lawyer who sought to brief and argue an
appeal in which the question was whether denial of specific
performance constituted reversible error. The attorney seeking to
handle the appeal had testified at trial, not as to the nature of
relief that would be appropriate, but as to the contractual
obligation itself, specifically whether in a telephone
conversation the lawyer had agreed on behalf of his client to
waive a purchase option. The trial judge ruled in favor of the
client, crediting the testimony of the lawyer and rejecting the
defense of waiver. The waiver issue was not to be raised on the
contemplated appeal and, because the subject of the lawyer's
testimony could be isolated from issues that were being raised on
appeal, it would be possible to disregard his testimony in the
brief. Under these circumstances, the Committee found that there
were no ethical impediments to the lawyer representing the client
on appeal. The first exception enumerated in DR 5-101(B) -
authorizing a lawyer to act as trial counsel even though he will
be a witness "if the testimony will relate solely to an
uncontested matter" - might be applicable given that the
waiver issue was not to be raised on appeal. There was, however,
a more fundamental basis for the Committee's decision, one that
did not entail the difficulty of characterizing the waiver issue
as "uncontested" when indeed it had been contested at
trial: The lawyer's trial testimony did not pertain to any issue
that would be argued on appeal.
If an attorney may ethically act
as appellate counsel under the above standard, he may handle all
aspects of that representation, including the argument of the
case. On the other hand, if the attorney may not ethically accept
such employment, he is forbidden not only from arguing the case
but also from participating in preparation of the brief.
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