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May 19, 2004

This Barrister Can’t Barter

Filed under: pre-06-2006 — David Giacalone @ 2:58 pm

A Texas appellate court won’t let divorce lawyer Mary McKnight appear at trial for Bill Sanders, because the client “did carpentry work on McKnight’s Dallas law office to help defray the fees he incurred in his divorce proceedings.”  According to the 5th Court of Appeals in Dallas, the arrangement turned the lawyer into her client’s employer, and thus a witness on issues relating to “Bill’s abilities to care for the minor child or pay child support.” (Texas Lawyer/NYLawyer, Lawyer Ousted From Case for Not Taking Cash, May 19, 2004)


The memorandum opinion in In re Joyce Elizabeth Sanders turned to Texas disciplinary Rule 3.08 for guidance in determining disqualification of counsel, since McKnight was being called as a witness by opposing counsel.  The court reasoned:



oil can “After reviewing the record, we conclude the trial court abused its discretion in denying the motion to disqualify McKnight from acting as trial counsel for Bill. McKnight’s testimony as an employer relating to Bill’s abilities to care for the minor child or pay child support, and her possibly adverse testimony about when the employment began leads us to conclude a fact finder may be confused or mislead by McKnight’s dual roles.”


The writ would allow McKnight to continue to act as counsel for Bill on pretrial matters and, if the requirements of 3.08(c) are met, other attorneys with McKnight’s firm may act as advocate for Bill in any adjudicatory proceeding in this case.  In a strong Dissenting Opinion, Justice Whittington argued: 



The “employment” referred to by the majority is the performance of handyman jobs that Bill Sanders did for Mary McKnight after hours to help defray the cost of attorney’s fees. The record before us supports the trial judge’s determination that any confusion caused by McKnight’s testimony regarding Bill’s completion of the jobs for her would be de minimis.


        Additionally, disciplinary rule of professional conduct 3.08 should not be used as a tactical weapon to deprive the opposing party of the right to be represented by the lawyer of his or her choice because reducing the rule to such a use would subvert its purpose. . . . That is precisely what happened in this case.


hammer The Texas Lawyer article points out that the decision “troubles some family law attorneys who say the opinion could kill a long tradition of bartering between lawyers and low-income clients.”  Lawyer McKnight says it will “have a detrimental effect on solos and small-firm lawyers who sometimes accept services in exchange for representing clients who have no other way to pay them.”  



  • According to the article, Bill Sanders had been billed more than $100,000 in legal fees in this bitter divorce, and had performed about $25,000 in handyman and carpentry services.
Got any opinions or stories on bartering lawyers?  Carolyn?

18 Comments

  1. From a purely litigation standpoint, the decision makes sense. If I’m litigating a particular case, I am entitled to discovery on all matters that are relevant to the case, and in a divorce case the husband’s income and employment certainly fall into that category. Why should I be deprived of discovery on that issue simply because the client chose his own lawyer to be his employer for a while? The answer is: I’m not deprived; I’m entitled to depose and eventually call to testify at trial all relevant witnesses, which leads to the obvious ethical no-no of a lawyer testifying as a witness in her own client’s case.

    Comment by UCL — May 19, 2004 @ 7:18 pm

  2. From a purely litigation standpoint, the decision makes sense. If I’m litigating a particular case, I am entitled to discovery on all matters that are relevant to the case, and in a divorce case the husband’s income and employment certainly fall into that category. Why should I be deprived of discovery on that issue simply because the client chose his own lawyer to be his employer for a while? The answer is: I’m not deprived; I’m entitled to depose and eventually call to testify at trial all relevant witnesses, which leads to the obvious ethical no-no of a lawyer testifying as a witness in her own client’s case.

    Comment by UCL — May 19, 2004 @ 7:18 pm

  3. Hola, UCL!   I was going to be a slacker and not respond, but I feel a heavy responsibility to reply, because you seem to be suggesting there is a per se rule against the attorney testifying, and that is not true.
    Here is the Texas Rule 3.08 & Commentary: (which differs from the ABA Model Rule 3.7., and Comments)

    Rule 3.08 Lawyer as Witness
    (a) A lawyer shall not accept or continue employment in a contemplated or pending adjudicatory proceeding if the lawyer knows or believes that the lawyer is or may be a witness necessary to establish an essential fact on behalf of the lawyer’s client, unless:
    <DIR>
    <DIR>
    (1) the testimony relates to an uncontested issue;
    (2) the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony;
    (3) the testimony relates to the nature and value of legal services rendered in the case; or
    (4) the lawyer is a party to the action and is appearing pro se; or
    (5) the lawyer has promptly notified opposing counsel that the lawyer expects to testify in the matter and disqualification of the lawyer would work substantial hardship on the client.</DIR></DIR>
    (b) A lawyer shall not continue as an advocate in a pending adjudicatory proceeding if the lawyer believes that the lawyer will be compelled to furnish testimony that will be substantially adverse to the lawyer’s client, unless the client consents after full disclosure.
    (c) [n/a]
    Comment – Rule 3.08
    1. A lawyer who is considering accepting or continuing employment in a contemplated or pending adjudicatory proceeding in which that lawyer knows or believes that he or she may be a necessary witness is obligated by this Rule to consider the possible consequences of those dual roles for both the lawyer’s own client and for opposing parties.
    2. One important variable in this context is the anticipated tenor of the lawyer’s testimony. If that testimony will be substantially adverse to the client, paragraphs (b) and (c) provide the governing standard. In other situations, paragraphs (a) and (c) control.
    3. A lawyer who is considering both representing a client in an adjudicatory proceeding and serving as a witness in that proceeding may possess information pertinent to the representation that would be substantially adverse to the client were it to be disclosed. A lawyer who believes that he or she will be compelled to furnish testimony concerning such matters should not continue to act as an advocate for his or her client except with the client’s informed consent, because of the substantial likelihood that such adverse testimony would damage the lawyer’s ability to represent the client effectively.
    4. In all other circumstances, the principal concern over allowing a lawyer to serve as both an advocate and witness for a client is the possible confusion that those dual roles could create for the finder of fact. Normally those dual roles are unlikely to create exceptional difficulties when the lawyer’s testimony is limited to the areas set out in sub-paragraphs (a)(1)-(4) of this Rule. If, however, the lawyer’s testimony concerns a controversial or contested matter, combining the roles of advocate and witness can unfairly prejudice the opposing party. A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof.
    5. [n/a – purely formal or uncontested]]
    6. [n/a — related to lawyer’s fees]
    7. Apart from these four exceptions, sub-paragraph (a)(5) recognizes an additional exception based upon a balancing of the interests of the client and those of the opposing party. In implementing this exception, it is relevant that one or both parties could reasonably foresee that the lawyer would probably be a witness. For example, sub-paragraph (a)(5) requires that a lawyer relying on that sub-paragraph as a basis for serving as both an advocate and a witness for a party give timely notification of that fact to opposing counsel. That requirement serves two purposes. First, it prevents the testifying lawyer from creating a “substantial hardship,” where none once existed, by virtue of a lengthy representation of the client in the matter at hand. Second, it puts opposing parties on notice of the situation, thus enabling them to make any desired response at the earliest opportunity.
    8. This rule does not prohibit the lawyer who may or will be a witness from participating in the preparation of a matter for presentation to a tribunal. To minimize the possibility of unfair prejudice to an opposing party, however, the Rule prohibits any testifying lawyer who could not serve as an advocate from taking an active role before the tribunal in the presentation of the matter. See paragraph (c). Even in those situations, however, another lawyer in the testifying lawyer’s firm may act as an advocate, provided the client’s informed consent is obtained.
    9. Rule 3.08 sets out a disciplinary standard and is not well suited to use as a standard for procedural disqualification. As a disciplinary rule it serves two principal purposes. The first is to insure that a client’s case is not compromised by being represented by a lawyer who could be a more effective witness for the client by not also serving as an advocate. See paragraph (a). The second is to insure that a client is not burdened by counsel who may have to offer testimony that is substantially adverse to the client’s cause. See paragraph (b).
    10. This Rule may furnish some guidance in those procedural disqualification disputes where the party seeking disqualification can demonstrate actual prejudice to itself resulting from the opposing lawyer’s service in the dual roles. However, it should not be used as a tactical weapon to deprive the opposing party of the right to be represented by the lawyer of his or her choice. For example, a lawyer should not seek to disqualify an opposing lawyer under this Rule merely because the opposing lawyer’s dual roles may involve an improper conflict of interest with respect to the opposing lawyer’s client, for that is a matter to be resolved between lawyer and client or in a subsequent disciplinary proceeding. Likewise, a lawyer should not seek to disqualify an opposing lawyer by unnecessarily calling that lawyer as a witness. Such unintended applications of this Rule, if allowed, would subvert its true purpose by converting it into a mere tactical weapon in litigation.

    In this case, the trial court found that there was very little chance of confusion of role for the trier of fact.  Also, husband’s lawyer informed wife’s lawyer of the bartered services 9 months before trial, but wife’s counsel did not move to disqualify until 2 months before trial.   Definitely not a case were a per se disqualification would be warranted.

    Comment by David Giacalone — May 20, 2004 @ 1:42 am

  4. Hola, UCL!   I was going to be a slacker and not respond, but I feel a heavy responsibility to reply, because you seem to be suggesting there is a per se rule against the attorney testifying, and that is not true.
    Here is the Texas Rule 3.08 & Commentary: (which differs from the ABA Model Rule 3.7., and Comments)

    Rule 3.08 Lawyer as Witness
    (a) A lawyer shall not accept or continue employment in a contemplated or pending adjudicatory proceeding if the lawyer knows or believes that the lawyer is or may be a witness necessary to establish an essential fact on behalf of the lawyer’s client, unless:
    <DIR>
    <DIR>
    (1) the testimony relates to an uncontested issue;
    (2) the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony;
    (3) the testimony relates to the nature and value of legal services rendered in the case; or
    (4) the lawyer is a party to the action and is appearing pro se; or
    (5) the lawyer has promptly notified opposing counsel that the lawyer expects to testify in the matter and disqualification of the lawyer would work substantial hardship on the client.</DIR></DIR>
    (b) A lawyer shall not continue as an advocate in a pending adjudicatory proceeding if the lawyer believes that the lawyer will be compelled to furnish testimony that will be substantially adverse to the lawyer’s client, unless the client consents after full disclosure.
    (c) [n/a]
    Comment – Rule 3.08
    1. A lawyer who is considering accepting or continuing employment in a contemplated or pending adjudicatory proceeding in which that lawyer knows or believes that he or she may be a necessary witness is obligated by this Rule to consider the possible consequences of those dual roles for both the lawyer’s own client and for opposing parties.
    2. One important variable in this context is the anticipated tenor of the lawyer’s testimony. If that testimony will be substantially adverse to the client, paragraphs (b) and (c) provide the governing standard. In other situations, paragraphs (a) and (c) control.
    3. A lawyer who is considering both representing a client in an adjudicatory proceeding and serving as a witness in that proceeding may possess information pertinent to the representation that would be substantially adverse to the client were it to be disclosed. A lawyer who believes that he or she will be compelled to furnish testimony concerning such matters should not continue to act as an advocate for his or her client except with the client’s informed consent, because of the substantial likelihood that such adverse testimony would damage the lawyer’s ability to represent the client effectively.
    4. In all other circumstances, the principal concern over allowing a lawyer to serve as both an advocate and witness for a client is the possible confusion that those dual roles could create for the finder of fact. Normally those dual roles are unlikely to create exceptional difficulties when the lawyer’s testimony is limited to the areas set out in sub-paragraphs (a)(1)-(4) of this Rule. If, however, the lawyer’s testimony concerns a controversial or contested matter, combining the roles of advocate and witness can unfairly prejudice the opposing party. A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof.
    5. [n/a – purely formal or uncontested]]
    6. [n/a — related to lawyer’s fees]
    7. Apart from these four exceptions, sub-paragraph (a)(5) recognizes an additional exception based upon a balancing of the interests of the client and those of the opposing party. In implementing this exception, it is relevant that one or both parties could reasonably foresee that the lawyer would probably be a witness. For example, sub-paragraph (a)(5) requires that a lawyer relying on that sub-paragraph as a basis for serving as both an advocate and a witness for a party give timely notification of that fact to opposing counsel. That requirement serves two purposes. First, it prevents the testifying lawyer from creating a “substantial hardship,” where none once existed, by virtue of a lengthy representation of the client in the matter at hand. Second, it puts opposing parties on notice of the situation, thus enabling them to make any desired response at the earliest opportunity.
    8. This rule does not prohibit the lawyer who may or will be a witness from participating in the preparation of a matter for presentation to a tribunal. To minimize the possibility of unfair prejudice to an opposing party, however, the Rule prohibits any testifying lawyer who could not serve as an advocate from taking an active role before the tribunal in the presentation of the matter. See paragraph (c). Even in those situations, however, another lawyer in the testifying lawyer’s firm may act as an advocate, provided the client’s informed consent is obtained.
    9. Rule 3.08 sets out a disciplinary standard and is not well suited to use as a standard for procedural disqualification. As a disciplinary rule it serves two principal purposes. The first is to insure that a client’s case is not compromised by being represented by a lawyer who could be a more effective witness for the client by not also serving as an advocate. See paragraph (a). The second is to insure that a client is not burdened by counsel who may have to offer testimony that is substantially adverse to the client’s cause. See paragraph (b).
    10. This Rule may furnish some guidance in those procedural disqualification disputes where the party seeking disqualification can demonstrate actual prejudice to itself resulting from the opposing lawyer’s service in the dual roles. However, it should not be used as a tactical weapon to deprive the opposing party of the right to be represented by the lawyer of his or her choice. For example, a lawyer should not seek to disqualify an opposing lawyer under this Rule merely because the opposing lawyer’s dual roles may involve an improper conflict of interest with respect to the opposing lawyer’s client, for that is a matter to be resolved between lawyer and client or in a subsequent disciplinary proceeding. Likewise, a lawyer should not seek to disqualify an opposing lawyer by unnecessarily calling that lawyer as a witness. Such unintended applications of this Rule, if allowed, would subvert its true purpose by converting it into a mere tactical weapon in litigation.

    In this case, the trial court found that there was very little chance of confusion of role for the trier of fact.  Also, husband’s lawyer informed wife’s lawyer of the bartered services 9 months before trial, but wife’s counsel did not move to disqualify until 2 months before trial.   Definitely not a case were a per se disqualification would be warranted.

    Comment by David Giacalone — May 20, 2004 @ 1:42 am

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