These summaries were prepared by McGuireWoods LLP lawyer Thomas E. Spahn. They are based on the letter opinions issued by the Virginia State Bar. Any editorial comments reflect Mr. Spahn's current personal views, and not the opinions of the Virginia State Bar, McGuireWoods or its clients. 
 Back to main menu

  Print This Leo
LEO NumTopicsSummary

4-Witness-Advocate Rule

44-Conflicts - Miscellaneous

77-Communicating with an Individual Adversary

A lawyer who testifies in a venue hearing may not continue to represent the client through the rest of the litigation even if the venue issue will not "come up again during the trial on the merits." If the lawyer had to testify, it could not have been an uncontested matter. The "substantial hardship" exception did not apply because the lawyer did not allege "a distinctive value to the client as a result of any long-standing relationship with the client and familiarity with the client's affairs such that changing lawyers would pose a 'substantial hardship' to the plaintiff." Even though the venue question would not arise before the jury, the witness advocate rule applies with equal force to issues addressed to the judge. The witness-advocate rule "is a broad prophylactic rule designed to prevent even the appearance of impropriety," and therefore a lawyer who "testifies as a witness as to some contested pretrial issue" may not later appear as an advocate on the client's behalf. The lawyer may not arrange for another lawyer to file the lawsuit and handle the pretrial hearing examination (and then replace that lawyer as advocate), because it would circumvent the witness-advocate rule "through the actions of another."A lawyer may not contact an adversary ex parte after the adversary has non-suited a case, because "the entry of a non-suit does not terminate the representation of a party." The presumption of representation continues after the non-suit, just as the presumption continues during the period when an appeal might be filed after a final judgment.

Copyright 2000, Thomas E. Spahn