The Title Attorney as Trial Counsel

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The Title Attorney as Trial Counsel

When title disputes erupt, frequently the title lawyer for the oil company knows more about the facts than anyone else.  If the title lawyer has court room experience, the oil company will want its title lawyer to represent it in the case.  This was the situation in the case of Harkins & Co. v.  Lewis, 535 So.2d 104 (Ala. 1988).  William Utsey, a Butler, Alabama, lawyer rendered the oil company’s title opinions and represented the oil company in the force integration of the well involved in that case.  Mr. Utsey, who is now deceased, was a renowned trial lawyer.  The defendant oil company, Harkins & Co., retained Mr. Utsey to represent it in the case.  The plaintiffs moved the trial court to disqualify Mr. Utsey, and the trial court disqualified Mr. Utsey, who ultimately testified for the oil company at the trial.

On appeal, the Alabama Supreme Court held that Mr. Utesy was disqualified under Alabama Disciplinary Rule 5-102(A), which was then in force:

DR 5-102 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 firm 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 DR 5-101(B)(1) through (4).

 

Harkins, 535 So.2d at 111.

In Harkins, the Alabama Supreme Court held:

 

The word “ought” as used in the context of DR 5-102(A), is defined in Webster's Ninth New Collegiate Dictionary (1981) as a “verbal auxiliary” that is “used to express ... advisability.” Our review of the record in the case at bar convinces us that at the commencement of the trial, it was clearly advisable for Mr. Utsey to testify on behalf of his clients, concerning his examination of the chain of title, as well as the circumstances surrounding Harkins's decision to drill on the land and extract the oil. Our view in this regard is supported, in part, by the fact that Mr. Utsey did later take the stand on behalf of his clients. Under these circumstances, we cannot hold the trial court in error for disqualifying Mr. Utsey.

 

Harkins, 535 So.2d at 113.

 

Effective June 23, 2008, Disciplinary Rule DR 5-101 was replaced with Rule 3.7 of the Alabama Rules of Professional Conduct.  The new Rule 3.7 provides:

Rule 3.7  Lawyer as Witness

(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness, except where:
(1) The testimony relates to an uncontested issue;
(2) The testimony relates to the nature and value of legal services rendered in the case; or
(3) Disqualification of the lawyer would work substantial hardship on the client.
(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness, unless precluded from doing so by Rule 1.7 or Rule 1.9.

 

The new Rule 3.7 should not change the result of Harkins.  (The Alabama Supreme Court specifically found in Harkins that no substantial hardship resulted because the your company had other competent counsel available for trial.)

Copyright 2011 by Edward G, Hawkins. All rights reserved.