Appeal from Oregon Tax Court. Carlisle B. Roberts, Judge.
Warde H. Erwin, P.C., Portland, argued the cause and filed briefs for appellants.
G. F. Bartz, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and Walter J. Apley, Assistant Attorney General, Salem.
O'Connell, Chief Justice, and McAllister, Denecke, Tongue, Howell and Bryson, Justices.
We have read the briefs, the transcript and the Tax Court file. We agree with the opinion of the Tax Court on the issues raised in this case and therefore we adopt the opinion, 5 OTR Adv Sh 86 (1972).
It is appropriate that we mention one other matter not appearing in the opinion of the Tax Court.
Counsel for plaintiffs testified at length concerning the sale of plaintiffs' interest in the Arizona property in 1966 and the various tax ramifications and problems that arose from the sale. Counsel also argued the case in the Tax Court, and the argument necessarily involved many of the matters contained in his testimony. The same counsel argued the case in this court.
The American Bar Association Code of Professional Responsibility (1969) was adopted by this court on December 30, 1970. Canon 5 states in pertinent part, under Disciplinary Rules:
"DR 5-101 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 ...