ETHICS OPINION 566-1969 ATTORNEYS

NUMBER 566

QUESTION.

May the firm, of which I am a member, continue to act as attorneys for the defendants in a suit now pending in the U.S. District Court for the Southern District of New York, considering the fact that it now appears that counsel who is to try the case, Mr. Blank, a member of firm, will apparently be required to testify as a witness for the defendants?

 

The suit is to recover treble damages, declaratory judgment and injunctive relief by a labor union which claims in its complaint that the corporate purchaser of assets of a corporate defendant was bound by the collective bargaining agreement of the seller, although the purchaser had a different collective bargaining agreement with a different union. The defendants claim that the sale had absolutely nothing to do with the respective union situations of the companies involved, and that the sale was for valid business reasons.

 

Upon disclosure of the proposed sale to the union and its representatives, including the attorney who is its attorney in the pending suit, and including the attorney for the defendants in that suit, a number of meetings were had at which the respective contentions of the parties were expressed and efforts were made to adjust the parties’ differences. Both the plaintiff and the defendants in the suit believe that at the trial it will be necessary to prove what was said and done at these meetings. Since the parties have been unable to agree on those facts in the pre-trial order which is now in the process of being formulated, the trial counsel for defendants believes that he will be a necessary witness to testify to those facts. He believes that the attorney for plaintiff will also be such a necessary witness, if not on his own behalf, then possibly on behalf of the defendants as an adverse witness. Such testimony, we believe, will be important to the issues to be tried.

 

Since it now appears that the action cannot be settled and must be tried, is it proper for Mr. Blank or his firm to continue as counsel in this action, or must he and his firm withdraw therefrom? Is the situation of the attorney for the plaintiff the same? (italics ours)

 

After receipt of the foregoing questions, the Committee received a letter from the opposing attorney as follows:

 

I write in reference to the inquiry of Mr. Blank in their letter addressed to you and through you to the Committee on Professional Ethics of the New York County Lawyers’ Association. They have sent me copies of their letter and your response.

 

Messrs. Blank are the attorneys for the defendants; I am the attorney for the plaintiff-union. I have been the attorney for the plaintiff and its predecessors for more than 30 years.

 

The action was commenced in April 1965 and I am told by the pre-trial Examiner may come to trial this fall.

 

This litigation has been difficult and time consuming. Complicated questions of fact and important questions of labor Law are involved. The outcome of the case is a matter of serious consequence to the union and to employees of the defendants.

 

Although the letter of inquiry does not specify, Mr. Blank of counsel for the defendants, in conversations with me, indicated that the incident that prompted the inquiry was a conference in this office on January 26, 1965. Not only was Mr. Blank and the undersigned present, but the representatives of our principals, the president and vice-president of the principal defendants, and the president of the plaintiff-union, were there as well.

 

I know of no reason why Mr. Blank need testify at the trial, and the writer does not plan to do so either. Mr. Doe and Mr. Roe are both available and competent to testify.

 

Although no ethical question is presented here that may compel the defendants to do so, nevertheless, I assume that if they are so minded, they may substitute another trial attorney for Mr. Blank, provided such a move will not cause undue delay of the already long delayed trial of this action.

 

at any rate, the writer is deeply concerned that, under the guise of presenting a problem of professional ethics, the intimation is the inquiry that the attorney for the plaintiff may be called as an “adverse witness” on behalf of the defendants is intended to cause, or if not intended, may, nevertheless, result in serious disadvantage to the plaintiff by depriving the Union of the services of the attorney of its choice, who is familiar with every aspect of the case and who prepared and appeared in the action from its inception.

 

In its broader aspects, such a device, if permitted, could result in the violation of the constitutional rights of litigants to counsel of their own choice. Such a consequence should, indeed, be avoided.

 

I am prepared, of course, to cooperate in every way that the Committee may require.

 

ANSWER.

 

CANON 19 provides:

 

“When a lawyer is a witness for his client, except as to merely formal matters, such as the attestation of custody of an instrument and the like, he should leave the trial of the case to other counsel. Except when essential to the ends of justice, the lawyer should avoid testifying in court in behalf of his client.”

 

We believe that Canon 19 requires that Mr. Blank withdraw as trial counsel since it appears that he will testify for his client. Attorneys should avoid situations where the leverage and stature which they enjoy with a jury during trial is carried on to the witness stand and thereby add undue weight to their testimony. Mr. Blank therefore should not attempt to act in the dual role of trial counsel and witness.

 

The foregoing does not necessarily mean that Mr. Blank’s firm must withdraw, “Other counsel”, in our opinion, does not necessarily refer to other law firms, Indeed, the American Bar Association in an opinion held that it was not unethical for an attorney to represent a client for whom the attorneys’ partner will be a material witness in the case (see “ABA #220”). It would seem to be within the bounds of propriety for another partner in Mr. Blank’s firm to serve as trial counsel under the circumstances of this case.

 

We believe that the same principles would apply to the attorney for the other party in the litigation if such attorney is to be called as witness on behalf of his client.

 

March 31, 1969