85-3.

• Case Date: August 23, 1985
• Court: Alaska

Alaska Ethics Opinion 1985. 85-3. Ethics Opinion No. 85-3Propriety of Firm Continuing as Trial Counsel when it is Necessary to Call a Former Associate as a Witness.The Committee has been asked to determine whether a firm may represent a client at trial when it is necessary to call a former associate of the firm as a witness on behalf of the client. Law Firm A was Mr. X's personal attorney. When Mr. X became president of Corporation Z, Law Firm A became counsel to the Corporation. Associate B did work for the Corporation as corporate counsel. A disgruntled customer sued the Corporation, Mr. X, Associate B, and other corporate officers alleging that they had fraudulently induced him to purchase the Corporation's product. All defendants except Mr. X have now been dismissed (by reason of settlement or bankruptcy). Law Firm A has been retained to represent Mr. X at trial and has determined that it should call its former Associate B to give testimony helpful to Mr. X's defense. It is not expected the Associate's testimony will be disputed. DR 5-101(B) prohibits a lawyer from acting as trial counsel when the attorney also will be called to testify at trial, except in certain limited circumstances. None of the exceptions are applicable to the facts. DR 5-105(D) states if a lawyer is required to decline employment, then "no partner, or associate, or affiliate with him or his firm" may accept or continue employment. See also, Aleut Corp. v. McGarvey, 573 P.2d 473 (Alaska 1978). DR 5-101(B) would prohibit Associate B from representing Mr. X as trial counsel. The question, therefore, is whether DR 5-105(D)...