Town of Mebane v. Iowa Mut. Ins. Co., 7515SC534

• Decision Date: 17 December 1975
• Docket Number: No. 7515SC534,7515SC534
• Citation: 220 S.E.2d 623,28 N.C.App. 27
• Parties: TOWN OF MEBANE, v. IOWA MUTUAL INSURANCE COMPANY.
• Court: North Carolina Court of Appeals

Page 623

220 S.E.2d 623

28 N.C.App. 27

TOWN OF MEBANE, v. IOWA MUTUAL INSURANCE COMPANY.

No. 7515SC534.

Court of Appeals of North Carolina.

Dec. 17, 1975.

Allen, Allen & Bateman by J. Kent Washburn, Burlington, for plaintiff-appellant.

Henson, Donahue & Elrod by Perry C. Henson and Kenneth R. Keller, Greensboro, for defendant-appellee.

ARNOLD, Judge.

This case presents the troublesome question of when an attorney may testify on behalf of a client and not withdraw as trial counsel. The weight of authority in this country is that while it is a breach of professional ethics for an attorney for a party to testify as to matters other than formal matters without withdrawing from the litigation, he is not incompetent so to testify. The testimony is admissible if otherwise competent. 118 A.L.R. 954 (1939).

The Supreme Court of North Carolina has historically discouraged the practice of attorneys testifying on behalf of clients, and although it has been allowed, in most instances the lawyer acting as witness for his client has surrendered his right to participate in the litigation. In re Will of Kemp, 236 N.C. 680, 73 S.E.2d 906 (1953); See State v. Woodside, 31 N.C. 496 (1849).

Recognizing the unique problem of attorneys appearing as witnesses on behalf of parties they represent, the Council of the N.C. State Bar, an agency created by the General Assembly of North Carolina and empowered to formulate and adopt rules of ethics and conduct for attorneys licensed to practice in this State, adopted rules applicable to this situation in the Code of Professional Responsibility. (4A Gen.Stat. Append. VII 169 (Sup.1974)). The pertinent rules of the Code are as follows 'DR5--101--Refusing Employment When the Interests of the Lawyer May Impair His Independent Professional Judgment.

(B) A lawyer shall not accept employment in contemplated or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness, except that he may undertake the employment and he or a lawyer in his firm may testify:

(1) If the testimony will relate solely to an uncontested matter.

(2) If 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) If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or his firm to the client.

(4) As to any matter, if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case.'

'DR5--102--Withdrawal as Counsel When the Lawyer Becomes a Witness.

(A) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his form ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in DR5--101(B)(1) through (4).'

Article 2, Section 1 of the N.C. Constitution provides that 'The legislative power of the State shall be vested in the General Assembly . . ..' It is clear that the General Assembly is not to abdicate or delegate its authority to make law, but where it has declared the policy to be effectuated, established a framework of law within which the legislative goals are to be accomplished, and created standards for the guidance of the administrative agency, it may delegate to such agency the authority to make determinations of fact upon which the operation of the statute is made to depend. Foster v. Med. Care Com., 283 N.C. 110, 195 S.E.2d 517 (1973); Coastal Hwy. v. Auth., 237 N.C. 52, 74 S.E.2d 310 (1953).

G.S. Chapter 84, Article 4 creates the N.C. State Bar as the agency, subject to the superior authority of the General Assembly, to formulate and adopt rules of professional ethics and conduct for licensed attorneys. Adequate standards are set forth to guide the State Bar in effectuating the policy or legislative goals declared by the General Assembly.

While the Disciplinary Rules set forth in the Code of Professional Conduct do not control the admissibility of evidence or the competency of witnesses, they do govern the ethics and conduct of attorneys licensed to practice law in the State, and it should be the policy of the courts to give effect to these rules which specifically address the question of when an attorney may be a witness for a party he represents.

We see no inconsistency in the Code of Professional Conduct and the uniform practice that has existed in North Carolina with respect to attorneys testifying on behalf of clients. If it becomes obvious that an attorney ought to testify on behalf of his client it is clear that he may do so, but he or any member of his firm shall not continue representation in the trial unless he can come under the exceptions listed in Disciplinary Rule 5--101(B)...