Lawyer as Witness
Adopted: January 25, 2013
Opinion rules that whether a lawyer is a “necessary witness” and thereby disqualified from acting as a client’s advocate at a trial is an issue left up to the discretion of the tribunal.
Editor’s Note: See 2011 FEO 1 for additional guidance.
Inquiry:
Based on allegations by A, Defendant B was arrested and charged with cruelty to animals. B’s lawyer wrote to A and asked him to withdraw the charges. B’s lawyer advised A that B had not harmed the animals and advised A that he could be sued civilly for maliciously instituting charges against B without probable cause. Eventually, B’s motion for a directed verdict was granted in the matter.
Lawyer, on behalf of B, filed a malicious prosecution suit against A. The pleadings contained an allegation that Lawyer had contacted A, assured A that B had not harmed his animals, asked A to withdraw the charges, and advised A that “persons who maliciously institute charges without probable cause could be held liable for damages.” The pleading then alleges that A “maliciously refused to contact the relevant law enforcement authorities to inform them of the true facts.”
The trial court questions whether Lawyer had made himself a witness by virtue of his inclusion of the above-referenced factual allegations.
Opinion:
Rule 3.7(a) provides that a lawyer shall not act as advocate at a trial in which “the lawyer is likely to be a necessary witness” unless: (1) the testimony relates to an uncontested issue; (2) the testimony relates to the nature and value of legal services rendered in the case; or (3) disqualification of the lawyer would work substantial hardship on the client.
A lawyer should be disqualified under Rule 3.7 only upon a showing of “compelling circumstances.” State v. Schmitt, 102 P.3d 856, 859 (Wash. Ct. App. 2004). 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).
The issue of whether a lawyer is a “necessary witness” and thereby disqualified from acting as a client’s advocate at a trial is an issue best left to the discretion of the tribunal. Determining whether a lawyer is likely to be a necessary witness “involves a consideration of the nature of the case, with emphasis on the subject of the lawyer’s testimony, the weight the testimony might have in resolving disputed issues, and the availability of other witnesses or documentary evidence which might independently establish the relevant issues.” Fognani v. Young, 115 P.3d 1268 (Colo. 2005).