98-11.

• Case Date: November 30, 1998
• Court: Kansas

Kansas Ethics Opinion 1998. 98-11. November 30, 1998KBA Legal Ethics Opinion No. 98-11November 30, 1998 TOPIC: Attorney as Witness Digest: In the absence of a conflict of interest, Rule 3.7 is only applicable if the matter for which the lawyer-witness is engaged goes to trial. Rule 3.7 does not prohibit a lawyer-witness from representing the client in pretrial matters. If the matter goes to trial, the committee feels that the lawyer should make the decision as to whether the lawyer will be a necessary witness at trial. If the lawyer believes such to be the case, unless falling within one of the exceptions to the Rule, the lawyer may not represent the client at trial. Even if the lawyer believes he falls within one of the exceptions to Rule 3.7, if the lawyer's testimony will adversely affect the client's interests in the litigation, the attorney should not undertake representation without the informed consent of the client in writing. Based upon the facts presented, we are without sufficient information to determine whether or not any of the exceptions to Rule 3.7 are applicable. Further, we are unaware if the opposing party might seek to call the lawyer as a witness at trial so as to trigger the application of the LeaseAmerica test. Date of Request: July 17, 1998 Reference: MRPC 1.7, 1.9 and 3.7 LeaseAmerica Corporation v. Stewart, 19 Kan.App.2d 740 (1994) The function of the Kansas Bar Association's ethics advisory service is to respond to inquiries from Kansas-licensed lawyers concerning proposed conduct. The limitations on the service do not allow us to render an opinion regarding past conduct or the conduct of someone other than the requesting attorney. The following constitutes only the opinion of the Committee on Professional Ethics-Advisory Services, and is not in any way intended to be a guarantee of a particular result or a conclusion by appropriate authorities. Further, this document constitutes the Committee's opinion based on the facts and information contained in correspondence above referenced. It is based on a review of the disciplinary rules, model rules of professional responsibility and conduct, and applicable case law. This opinion is not a grant of immunity from any form of legal or disciplinary proceeding. The opinion herein is that of a KBA committee without official government status. The Kansas Bar Association expressly disclaims any liability in connection with issuing this opinion. FACTS Lawyer was a passenger in a car driven by a close friend. They are involved in an accident. The friend has entered settlement negotiations. Negotiations were not going well and litigation may result, although the...