ETHICS OPINION 548-1966 WITNESS

NUMBER 548

QUESTION

 

“A is a partner of an accounting firm which has prepared and signed the federal income tax returns of Corporation X, In connection with the financial audits of Corporation X made by his firm, A has also advised as to the income tax consequences of certain activities undertaken, or to be undertaken, by Corporation X.

 

“Corporation X is now before the Bankruptcy Court under Chapter XI A, who is also an attorney, has been appointed as special counsel to defend Corporation X against the federal income tax claims asserted by the United States, The United States had indicated that it desires to take the deposition of A, and that It will probably call A as one of its witnesses if there is a trial of the tax claims before the Referee.

 

“Under Canon 19, may A conduct the trial of the tax case before the Referee in Bankruptcy if he is to be called as a witness by the United States?

 

“In passing, I took a quick look at Drinker’s Legal Ethics, and it would seem that Canon 19 is not applicable where the lawyer is called by his adversary In any event, it seems to be written in terms that a lawyer should avoid pushing forward his own prestige to enhance his client’s posture by submitting himself as a witness on behalf of the client. This would be of significance in front of a jury, I have difficulty in seeing a referee in bankruptcy being so influenced one way or the other”

 

ANSWER.

 

“Canon 19 is not applicable since it refers only to a lawyer’s taking a case when he intends to call himself as a witness for his own client. The proposed retainer therefore does not constitute a violation of that canon. If the attorney accepts the retainer with knowledge of the intention of his adversary to call him as a witness, he should advise his client of any risks that the retainer might involve to the client’s best interests as a result of his being called as an adverse witness.”

 

October 13, 1966