Advocate or Witness?
By Deanna S. Brocker
May a lawyer play the roles of both advocate and witness in a client's trial? The answer now depends upon whether the attorney is likely a "necessary" witness in his or her client's case. With some limited exceptions, Revised Rule 3.7, the "Lawyer as Witness" rule, disqualifies an attorney from appearing as an advocate when it is likely he or she will be a "necessary" witness at trial. 1 This rule, based upon Model Rule 3.7, improves upon ambiguous language in former Rule 5.2 which prohibited an attorney from acting as an advocate in any case where "it is obvious" the attorney "ought to be called as a witness" on the client's behalf. The revised rule also eliminates the former rule's automatic imputed disqualification of other lawyers in the firm of the testifying lawyer.
The adoption of the revised rule's narrower language was intended to remedy, among other things, abuses by opposing counsel moving to disqualify an attorney, and his or her firm, for purely tactical reasons, thereby divesting an opposing party of counsel of its choice. While "necessity" in Rule 3.7 has been interpreted in a wide variety of ways in various jurisdictions, cases based upon language in Model Rule 3.7, as opposed to language similar to our former rule, have required a greater showing by the movant before an attorney is forced from the case. 2 Certainly, if the client's case would fail but for the lawyer's testimony, the attorney must abandon the role of advocate. Moreover, if an attorney's testimony would be deemed by a "disinterested attorney" likely to be important to the client's success, the attorney should withdraw as advocate and testify instead. 3
At the other end of the spectrum, an attorney should be permitted to continue representation at trial if the proposed testimony is merely cumulative or is obtainable from another source. Furthermore, an attorney should not be forced from a case if the anticipated testimony is, at most, relevant and somewhat useful. Ultimately, the trial court is vested with discretion to determine issues of "necessity" while balancing the interests of expediency and fairness in ruling upon motions to disqualify.
Having set forth the primary differences between Revised Rule 3.7 and its predecessor, some of the more confusing and often misunderstood aspects of the former rule remain the same. These misperceptions are best explained by reference to what the rule is not.
First, Revised Rule 3.7 is not waivable. The rule serves to protect the administration of justice rather then merely the interests of individual clients. Thus, the fact that a client is willing to forego his attorney's necessary testimony to retain his attorney as advocate at trial is immaterial.
Second, Revised Rule 3.7 not a conflict of interest rule. That is to say, the dual role of advocate and witness does not necessarily create a conflict. The inquiry is first, whether an attorney will likely be a "necessary" witness under Revised Rule 3.7. If not, the conflict rules, such as Revised Rules 1.7 and 1.10, determine whether disqualification is appropriate. 4 For example, a conflict may arise where the lawyer's truthful testimony will be adverse to that of his client. In such a case, continued representation would be improper under Revised Rule 1.7(b), and the conflict would be imputed to other members of that attorney's firm under Revised Rule 1.10.
Third, Revised Rule 3.7 does not render an attorney incompetent to testify. Instead, it gives a trial court discretion to determine whether an attorney may testify at trial without withdrawing from the case. 5
Fourth, disqualification of the testifying attorney under this rule does not extend beyond "the trial." In other words, the witness attorney may continue representation of the client so long as he or she does not appear as the client's trial counsel. For example, notwithstanding that an attorney may be a necessary witness, it may be permissible for him or her to represent the client in pretrial discovery, pretrial motions, or in any capacity short of the advocate-at-trial role. 6 As stated earlier, even where the testifying attorney cannot make trial appearances, another attorney in his firm may. 7 In addition, it may be permissible for the witness attorney to assume representation at the appellate stage.
A final note: as distinguished from other rules of professional conduct, Revised Rule 3.7 is more aptly addressed in the courtroom rather than through the disciplinary process. Perhaps because it is only encountered in litigation or because it presumes substantial judicial discretion, the rule will ordinarily be an inappropriate basis for imposing attorney discipline. 8
1. The Revised Rules of Professional Conduct were effective as of July 24, 1997.
2. See e.g. , Security Gen. Life Ins. Co. v. Superior Court , 718 P.2d 985 (Ariz. Sup. Ct. 1986); Cannon Airways Inc. v. Franklin Holdings Corp. , 669 F. Supp. 96 (D.C. Del. 1987).
3. Charles W. Wolfram , Modern Legal Ethics § 7.5, at 381 (1986). "[T]he decision to forego testifying in order to serve as advocate involves a potential conflict of interest. That is particularly true when the lawyer would earn a large fee for acting as advocate and little or no fee if he or she withdrew to testify. The temptation for the lawyer to downplay the importance of his or her testimony should be discussed with the client, and the client should voluntarily consent to the lawyer's recommended choice of the role of advocate." Id. at 382, n.70 (citations omitted).
4. Revised Rule 1.7 (simultaneous conflicts); Revised Rule 1.10 (imputed disqualification).
5. A court may permit an attorney to serve both as "necessary" witness and advocate where:
the testimony relates to an uncontested issue;
the testimony relates to the nature and value of legal services rendered in the case; or
disqualification of the lawyer would work substantial hardship on the client.
6. See Annotated Model Rules of Professional Conduct Rule 3.7 cmt. (3 rd ed. 1996); Wolfram , supra at 388.
7. Revised Rule 3.7(b).
8. Discipline may be appropriate where an attorney proceeds as advocate only and deprives the client of clearly necessary testimony or where the attorney can make no good faith argument for applicability of one of the exceptions in Revised Rule 3.7(a). See Wolfram , supra at 390.
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