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Attorney Can Be Witness and Lawyer for One Party — Without Disqualification

Several times a year we see Florida cases where one party seeks to disqualify the other side’s counsel.  Whether this strategy works, or is worth the hassle, remains to be seen.  It certainly does bring litigation to a grinding halt.

The Second District recently cleared some of the air surrounding circumstances when a lawyer can represent one party even though counsel may have to take the stand.  We turn to the facts of Alto Construction Company, Inc. v. Flagler Construction Equipment, LLC (Wallace, Fulmer and Northcutt).

Attorney Lorraine Jahn represents the defendant Alto both in this construction-related breach of contract case BUT she also was on retainer for Flagler and had previously had communications with Flagler employees about the dispute which blew up into this lawsuit (offhand, we wonder how that retainer relationship might be going these days…).  Once suit kicked up and she appeared for Alto, Flagler sought to disqualify her as a material witness and potential co-defendant.

At an evidentiary hearing, various arguments were raised and, inter alia, the trial court affirmed that the lawyer had not violated any ethical obligations.  That said, the trial court acknowledged that she may be a material witness due to her involvement in the issues prior to suit.  For that reason, the trial court entered an order disqualifying her.

On appeal, the Panel noted that the Rules Regulating the Florida Bar do not mandate an attorney’s automatic disqualification when he or she is called to testify.  See R. Regulating Fla. Bar. 4-3.7(a), “a lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness on behalf of the client.”  Here, an Alto representative filed an affidavit that they did not intend to call her.  Case law indicates that a lawyer would be disqualified if called by the opposing party and if the lawyer’s testimony will be sufficiently adverse to the factual assertions or accounts offered on behalf of the client.”  In short, the general rule appears to be that (1) your own client can’t call you to the stand as a necessary witness or “central figure” and (2) you can’t testify contrary to your opening/closing.

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