A solo attorney may ethically represent his law firm PLLC and also testify as a witness in a fee dispute with a former client.
This is so despite the prohibition of NC Rule of Professional Conduct 3.7, which says attorneys cannot serve as both advocate and witness in a matter.
That’s the ruling in NC State Bar 2020 Formal Ethics Opinion 3, which asks whether an attorney suing a client over an unpaid fee may also testify as a witness in the case. The question is important because Rule 3.7, with some limited exceptions, says lawyers shall not be advocates in cases where they will also likely be a necessary witness.
In 2020 FEO 3, however the State Bar said that principle is inapplicable when the lawyer is also a litigant.
“The underlying reason for the prohibition is to avoid confusion regarding the lawyer’s role,” according to the opinion. “The rationale does not apply when the lawyer is also a litigant. See 2011 FEO 1. The same analysis applies in this scenario where the lawyer-litigant is the sole owner of his own law practice.”
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Facts: Lawyer is a solo practitioner and the sole owner of his practice, Lawyer Firm PLLC. Lawyer, through Lawyer Firm PLLC, represented Client in an intellectual property matter. Client did not pay the entirety of the invoices submitted by Lawyer Firm PLLC to Client for services rendered. Lawyer, on behalf of Lawyer Firm PLLC, subsequently filed a lawsuit against Client seeking to recover the sums Lawyer contends Client owes to Lawyer Firm PLLC. Lawyer is the sole counsel representing Lawyer Firm PLLC. Because Lawyer performed the legal services that resulted in the dispute over legal fees owed, Lawyer will be a necessary witness in the litigation.
Lawyer, on behalf of Lawyer Firm PLLC, moved for summary judgment against Client. Prior to the court’s ruling on the motion, opposing counsel alleged to the court that Lawyer should be disqualified from representing Lawyer Firm PLLC because Lawyer—a necessary witness to the dispute—is prohibited from serving as both advocate and witness in the matter pursuant to Rule 3.7 of the North Carolina Rules of Professional Conduct.
Inquiry #1: Is Lawyer prohibited from representing Lawyer Firm PLLC in the dispute between Lawyer Firm PLLC and Client?
Opinion #1: No.
Inquiry #2: Should the court determine that Lawyer is disqualified from representing Lawyer Firm PLLC at trial, is Lawyer prohibited from representing Lawyer Firm PLLC in the motion for summary judgment?
Opinion #2: No. Rule 3.7(a) states, “A lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness...” (emphasis added). Rule 3.7’s prohibition on a lawyer acting as both advocate and witness in a particular matter is confined to a lawyer’s representation of a client at trial and does not automatically extend to the lawyer’s representation of a client in pretrial proceedings. Absent a conflict created by the lawyer’s representation in the matter or court order disqualifying the lawyer, a lawyer may represent a client in pretrial proceedings even if the lawyer is likely to be a necessary witness at trial. However, the Ethics Committee notes that some courts would disqualify a lawyer under Rule 3.7 from participating in pretrial activities if the pretrial activities involve evidence that, if admitted at trial, would reveal the lawyer’s dual role.
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