155 North High, Ltd. v. Cincinnati Insurance

72 Ohio St. 3d 423
CourtOhio Supreme Court
DecidedJuly 5, 1995
DocketNo. 93-2371
StatusPublished
Cited by70 cases

This text of 72 Ohio St. 3d 423 (155 North High, Ltd. v. Cincinnati Insurance) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
155 North High, Ltd. v. Cincinnati Insurance, 72 Ohio St. 3d 423 (Ohio 1995).

Opinion

Francis E. Sweeney, Sr., J.

A trial court has the duty and responsibility to supervise the conduct of attorneys who appear before it and its rulings will be upheld unless the court abused its discretion. Royal Indemn. Co. v. J.C. Penney Co. (1986), 27 Ohio St.3d 31, 27 OBR 447, 501 N.E.2d 617; Mentor Lagoons, Inc. v. Rubin (1987), 31 Ohio St.3d 256, 31 OBR 459, 510 N.E.2d 379. Thus, our inquiry in this case is whether the trial court abused its discretion by allowing 155 North High’s attorney to serve as both an advocate and witness at trial.2 For the following reasons, we find an abuse of discretion and, accordingly, affirm the court of appeals.

At first blush, our job appears more difficult because the referee deferred to the judgment of the attorney and completely abdicated his responsibility to make an independent determination as to whether the Disciplinary Rules were violated. Moreover, without consideration of the record, the trial court then adopted the referee’s report and recommendation. However, on remand, a different trial court reviewed the record and made an independent determination that the Disciplinary Rules were not violated. It is this ruling that we now review subject to the abuse-of-discretion standard.

The Code of Professional Responsibility sets forth the legal standards relating to the practice of law. The Code is comprised of three parts: Canons, Ethical Considerations, and Disciplinary Rules. The Canons are “statements of axiomatic norms, expressing in general terms the standards of professional conduct expected of lawyers in their relationships with the public, with the legal system, and with the legal profession.” Preface. The Ethical Considerations “are aspirational in character and represent the objectives toward which every member of the profession should strive.” Id. The Disciplinary Rules, however, are “mandatory in character,” because they “state the minimum level of conduct below which no lawyer can fall.” Id.

Within this framework, Canon 5 provides that, “A Lawyer Should Exercise Independent Professional Judgment on Behalf of a Client.” In part, this Canon [427]*427is enforced by DR 5-102(A), which states the general rule that “[i]f * * * a lawyer learns or it is obvious that he * * * ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and * * * shall not continue the representation in the trial, except that he may continue the representation and he * * * may testify in the circumstances enumerated in DR 5 — 101(B)(1) through (4).” EC 5-9 provides the rationale for the witness-advocate rule: “ * * * The roles of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the cause of another, while that of a witness is to state facts objectively.” EC 5-10 also declares that “[w]here the question arises, doubts should be resolved in favor of the lawyer testifying and against his becoming or continuing as an advocate.”

DR 5-102(A), unlike other rules3 in the Code of Professional Responsibility, makes no provision for client waiver of its application. This is so because the rule against a lawyer serving in the dual role of witness and advocate is designed to protect three distinct interests: those of the client, those of the adverse party, and that of ensuring the institutional integrity of the legal system as a whole. See 6 Wigmore on Evidence (Chadbourn Rev.Ed.1976), Section 19; United States v. Johnston (C.A. 7, 1982), 690 F.2d 638, 643. As eloquently stated by the court in GAC Commercial Corp. v. Mahoney Typographers, Inc. (1975), 66 Mich.App. 186, 191, 238 N.W.2d 575, 577: “As members of a profession in which public reliance and trust is so essential and whose members’ integrity must be assured to maintain vital public respect, we as attorneys must recognize the importance of a high standard by which our conduct is measured. Even where there is no thought of or intent to do wrong, if our conduct appears to be unethical, we weaken that respect and trust just as surely as if we had purposely violated a specific rule.”

Courts have uniformly shared the legal profession’s disapproval of the dual role of advocate-witness. See United States v. Birdman (C.A. 3, 1979), 602 F.2d 547, 553, and cases cited therein. See, also, Annotation (1985), 35 A.L.R.4th 810.

In Ohio, the only Supreme Court case to discuss these Disciplinary Rules has been Mentor Lagoons, Inc. v. Rubin, supra. However, in Mentor Lagoons, the issue before us was whether a lawyer was incompetent as a witness. In deciding that DR 5-102 does not automatically render a lawyer incompetent, we set forth a procedure for the court to follow in reaching its determination as to whether a lawyer can serve as both an advocate and a witness: the court must first determine the admissibility of his testimony without reference to the Disciplinary Rules; if the court finds the testimony admissible, the party or court may move for the attorney to withdraw or be disqualified and the court must then consider [428]*428whether any exceptions to the Disciplinary Rules are applicable, thus permitting the attorney to testify and continue representation. Id. at paragraph two of the syllabus.

Applying this procedure to the instant case, we find it obvious not only that Wiles’s testimony was admissible, but also that it was clear that he “ought to be called as a witness on behalf of his client.” Wiles had personal knowledge regarding the alleged acts of bad-faith claims handling. He was an active participant in dealings and negotiations beginning shortly after the fire and continuing up to the time the lawsuit was filed. He testified to conversations and actions taken by the insurance company. Thus, his testimony was necessary to prove his client’s claims. Moreover, this was not a sudden development. Wiles had known early on that he was a key witness. This fact is attested to in his affidavit which was attached to appellant’s memorandum contra Cincinnati’s motion for summary judgment. Additionally, the situation became glaringly obvious after Cincinnati’s company representatives were deposed, and Wiles knew that these representatives, especially Schwartz, could not recall several key events and discussions. By testifying at trial, the lawyer was able to fill in gaps created by Schwartz’s lack of recall of these events and discussions. Moreover, Wiles directly contradicted other facts as testified to by the insurance representatives.

But this does not end our inquiry. Having found Wiles’s testimony admissible, we must decide whether any of the exceptions contained within DR 5-101(B) would permit his testimony.

Appellant argues that DR 5 — 101(B)(4)4 applies. This exception provides that a lawyer may testify “[a]s to any matter, if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer * * * as counsel in the particular ease.” At trial, Wiles failed to make any argument as to why this exception applied.

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Cite This Page — Counsel Stack

Bluebook (online)
72 Ohio St. 3d 423, Counsel Stack Legal Research, https://law.counselstack.com/opinion/155-north-high-ltd-v-cincinnati-insurance-ohio-1995.