Lawyer as Advocate and Witness
Adopted: April 22, 2011
Opinion provides guidelines for the application of the prohibition in Rule 3.7 on a lawyer serving as both advocate and witness when the lawyer is the litigant.
Inquiry #1:
Rule 3.7(a) prohibits a lawyer from acting as an advocate at a trial in which the lawyer is “likely to be a necessary witness” unless the testimony will concern uncontested issues, the nature or value of legal services, or disqualification will work a substantial hardship on the client. Therefore, a lawyer who is identified as a witness has a professional responsibility, pursuant to Rule 3.7, to determine whether he or she is “likely to be a necessary witness” and, as such, is disqualified from acting as an advocate at the trial. When is a lawyer a “necessary witness” and at what point prior to trial must this determination be made?
Opinion #1:
Rule 3.7 prohibits a lawyer from serving as both an advocate and a witness in a trial to eliminate the confusion that may result for the trier of fact when a lawyer serves in both roles. The comment to the rule describes this as “the ambiguities of the dual role” and observes, “[a] witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof.” Rule 3.7, cmts. [2] and [3]. However, to protect the client’s choice of counsel and prevent abuse of the rule by an opponent as a litigation tactic, disqualification is limited to situations where the lawyer’s testimony is “necessary.” It is generally agreed that when the anticipated testimony is relevant, material, and unobtainable by other means, the lawyer’s testimony is “necessary.” See Ann. Model Rules of Prof’l. Conduct (6th ed. 2007), p. 361 (citing cases).
A lawyer who is named as a witness by an opposing party must evaluate his knowledge of the facts in controversy and make a good faith determination as to whether his testimony will be relevant, material, and unobtainable elsewhere. This evaluation must be ongoing as the case moves toward trial, contested issues are identified, and discovery discloses additional witnesses and information about the case. However, to avoid prejudicing a client due to a last-minute change of trial counsel, a lawyer should withdraw from representation in the trial if the lawyer knows or reasonably should know that he is a necessary witness. Failure to withdraw in a timely manner is a violation of Rule 3.7.
Inquiry #2:
Does the prohibition on serving as an advocate and a witness apply to pretrial work, settlement negotiations, or assisting with the trial strategy?
Opinion #2:
No. The underlying reason for the prohibition—confusion of the trier of fact relative to the lawyer’s role—does not apply when the lawyer’s advocacy is limited to activities outside the courtroom. See Ann. Model Rules of Prof’l. Conduct (6th ed. 2007), p. 364 (citing cases including Cunningham v. Sams, 161 N.C. App. 295, 588 S.E. 2d 484 (2003)(reversing portion of disqualification order prohibiting representation in pretrial activities)).
Although a lawyer may continue to provide representation outside the courtroom, the lawyer should not use this as an excuse to delay withdrawal from representation in the litigation if the lawyer knows or reasonably should know that he is a necessary witness. See Opinion #1 above.
Inquiry #3:
Is a lawyer who is a litigant and who is likely to be a necessary witness prohibited by Rule 3.7 from representing himself at the trial?
Opinion #3:
No. The underlying reason for the prohibition—confusion regarding the lawyer’s role—does not apply when the lawyer is also a litigant. See Ann. Model Rules of Prof’l Conduct (6th ed. 2007), p. 366 (citing cases). The Ethics Committee observes, however, that it is the sole prerogative of a court to determine advocate/witness issues when raised in a motion to disqualify. This ethics opinion merely holds that a lawyer/litigant is not required to find alternative counsel prior to a court’s ruling on a motion to disqualify.