Lawyers Who Are Sole Shareholders of Corporations May Represent Those Entities and Testify as Necessary Witnesses in Private Arbitration

By Alvin E. Mathews, Jr. Lauren K. Garretson

About Ethics and Professionalism Professional Liability

The objective of The Ethics and Professional Liability Bulletin is to keep legal professionals informed of recent developments and trends in the areas of legal ethics, professionalism, and professional liability.

June 2, 2021 – Typically, lawyers may not serve both as advocates for clients and necessary witnesses in private arbitration. However, the Ohio Board of Professional Conduct recently clarified that this general rule does not apply to lawyers representing closely held corporations of which they are the sole shareholders, subject to the arbitrator’s discretion.

The ethical considerations for an advocate-witness at trial also apply in arbitration. The “advocate-witness” rule, Ohio Prof. Cond. R. 3.7(a), states that “[a] lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness.” According to the Board, the advocate-witness rule applies not only to trials but to all tribunals, including binding arbitration.[1] Prof. Cond. R. 1.0(o) defines “tribunal” as “a court, an arbitrator in a binding arbitration proceeding, or a legislative body, administrative agency, or other body acting in an adjudicative capacity.” As such, “[t]he same ethical considerations for the advocate-witness in a trial apply equally in a binding arbitration before an arbitrator.”[2]

Because the “concern addressed by the advocate-witness rule is not so much where the conduct occurs, but rather the problem that is created when a lawyer advocates for a particular party before any forum and also testifies in that forum as to relevant and material facts,” similar issues arise whether the lawyer is in court or in arbitration.[3] A lawyer’s dual role as advocate-witness in an arbitration may prejudice the opposing party and may make it confusing to determine when the lawyer’s statements should be taken as proof or as an analysis thereof.[4] The Board therefore determined that Prof. Cond. R. 3.7(a) also applies to lawyers representing clients in private arbitration.

Lawyers representing corporations of which they are sole shareholders are essentially appearing pro se, thus minimizing the concerns addressed by the advocate-witness rule. According to the Board, while there is no enumerated exception to the advocate-witness rule in the Ohio Rules of Professional Conduct, the rule does not apply to lawyers appearing pro se.[5] Ohio courts have also held that lawyers may serve as their own counsel.[6] In this scenario, the usual concerns with representing a client as an advocate-witness do not exist. For instance, there is no potential conflict of interest between the client (the corporation) and the lawyer that might arise when a lawyer seeks to appear as an advocate-witness on behalf of a private client or an entity with multiple members.[7]

The Board concluded that a situation where a lawyer fills the role of advocate-witness while representing a closely held corporation of which he or she is the sole shareholder is sufficiently analogous to a scenario where a lawyer is proceeding pro se. Thus, lawyers may ethically appear as advocate-witnesses in private arbitration where they represent closely held corporations of which they are the sole shareholders.[8]

Lawyers proceeding essentially pro se in private arbitration have additional ethical considerations to bear in mind. Lawyers proceeding pro se and lawyers representing closely held corporations of which they are the sole shareholders must remain mindful of additional ethical considerations. Prof. Cond. R. 3.4(e) prohibits lawyers from “stat[ing] a personal opinion as to the justness of a cause, the credibility of a witness, [or] the culpability of a civil litigant.”[9] A lawyer who takes on the dual role of advocate-witness in an arbitration proceeding is more likely to sway the trier of fact when acting in his or her role as a witness and risks prejudicing the opposing party with testimony on the subjects listed in Rule 3.4(e).[10]

Rule 4.2 further prohibits a lawyer from communicating directly with another party to the matter, who is represented by counsel, about the subject of the representation. The Supreme Court of Ohio has held that this rule applies to lawyers proceeding pro se,[11] and thus this rule applies to lawyers representing closely held corporations of which they are the sole shareholders.

Conclusion and Practical Takeaway. Lawyers may ethically represent themselves in private arbitration if they are representing closely held corporations of which they are the sole shareholders. But, they must remain mindful of multiple ethical considerations. A lawyer taking on the dual role of advocate-witness in an arbitration may persuade the trier of fact with his or her testimony, which may also prejudice the opposing party. Additionally, a lawyer may not directly contact an opposing party known to be represented by counsel in a private arbitration, even when the lawyer is a party to the matter.

Ulmer’s Ethics & Professionalism and Professional Liability Practice Groups offer strategic advice to attorneys and law firms regarding their ethical obligations and defend them in critical matters involving disciplinary complaints, internal law firm disputes, and legal malpractice. With decades of experience handling these sensitive matters, Ulmer’s team of experienced attorneys helps clients confront these challenges so they can keep their focus on the practice of law. Please feel free to reach out to our attorneys if you have any questions.

The information provided in this bulletin speaks only to the information and guidance we have available as of the date of publication and is subject to change. We will continue to follow further issued guidance and regulations and endeavor to post those updates via our website. This legal update was created by Ulmer & Berne LLP, and is not intended as a substitute for professional legal advice. Receipt of this bulletin, by itself, does not create an attorney client relationship. For any questions, or for further information, please contact Alvin E. Mathews, Jr. at

[1] Ohio Board of Prof. Cond., Op. 2021-03, 2, citing In re Disciplinary Proceeding Against Pfefer, 182 Wash. 2d 716, 344 P.3d 1200 (2015) (holding that advocate-witness rule applies to disciplinary hearings and not just trials).

[2] Ohio Board of Prof. Cond., Op. 2021-03, 2.

[3] Ohio Board of Prof. Cond., Op. 2021-03, 2.

[4] Ohio Board of Prof. Cond., Op. 2021-03, 2–3, citing Ohio Prof. Cond. R. 3.7, cmt. [1].

[5] Ohio Board of Prof. Cond., Op. 2021-03, 3.

[6] E.g., Krueger v. Willowood Care Ctr. of Brunswick, Inc.,

[7] Ohio Board of Prof. Cond., Op. 2021-03, 3.

[8] Ohio Board of Prof. Cond., Op. 2021-03, 3, citing Pa. Eth. Op. 92-150.

[9] Ohio Board of Prof. Cond., Op. 2021-03, 4, quoting Ohio Prof. Cond. R. 3.4(e).

[10] Ohio Board of Prof. Cond., Op. 2021-03, 4.

[11] Disciplinary Counsel v. Bruce, 158 Ohio St.3d 382, 2020-Ohio-85.