Solo Practitioner as Witness
Adopted: October 23, 2020
Opinion rules that a solo practitioner/owner of a PLLC is not prohibited from representing the PLLC and testifying in a dispute with a former client.
Facts:
Lawyer is a solo practitioner and the sole owner of his practice, Lawyer Firm PLLC. Lawyer, through Lawyer Firm PLLC, represented Client in an intellectual property matter. Client did not pay the entirety of the invoices submitted by Lawyer Firm PLLC to Client for services rendered. Lawyer, on behalf of Lawyer Firm PLLC, subsequently filed a lawsuit against Client seeking to recover the sums Lawyer contends Client owes to Lawyer Firm PLLC. Lawyer is the sole counsel representing Lawyer Firm PLLC. Because Lawyer performed the legal services that resulted in the dispute over legal fees owed, Lawyer will be a necessary witness in the litigation.
Lawyer, on behalf of Lawyer Firm PLLC, moved for summary judgment against Client. Prior to the court’s ruling on the motion, opposing counsel alleged to the court that Lawyer should be disqualified from representing Lawyer Firm PLLC because Lawyer—a necessary witness to the dispute—is prohibited from serving as both advocate and witness in the matter pursuant to Rule 3.7 of the North Carolina Rules of Professional Conduct.
Inquiry #1:
Is Lawyer prohibited from representing Lawyer Firm PLLC in the dispute between Lawyer Firm PLLC and Client?
Opinion #1:
No. With some limited exceptions, Rule 3.7 provides that a lawyer may not act as advocate at a trial in which the lawyer is likely to be a necessary witness. The underlying reason for the prohibition is to avoid confusion regarding the lawyer’s role. Rule 3.7, cmt. [2]. The rationale does not apply when the lawyer is also a litigant. See 2011 FEO 1. The same analysis applies in this scenario where the lawyer-litigant is the sole owner of his own law practice.
It is the sole prerogative of a court to determine advocate/witness issues when raised in a motion to disqualify. Id. For example, considering the underlying concerns about confusion regarding the lawyer’s role in a particular proceeding, a court may find it necessary to disqualify a lawyer from representing his solo practice in a trial before a jury, but not in a trial before the bench. This ethics opinion merely holds that a lawyer/litigant in this scenario is not required to find alternative counsel prior to a court’s ruling on a motion to disqualify.
The Ethics Committee is aware of the North Carolina Court of Appeals’ decisions in Cunningham v. Sams, 161 N.C. App. 295 (2003) and Harris & Hilton v. Rassette, __ N.C. App. __, 798 S.E.2d 154 (2017). The committee is also aware that different jurisdictions have reached different conclusions on the issue of whether a lawyer may represent his or her solely owned law practice in a dispute against the law practice where the lawyer is a necessary witness. Compare Nat’l Child Care, Inc. v. Dickinson, 446 N.W.2d 810 (Iowa 1989) and Mt. Rushmore Broad., Inc. v. Statewide Collections, 42 P.3d 478 (Wyo. 2002). Despite their differing outcomes, these cases illustrate the overarching principle that a trial court can rationally reach different conclusions based upon the circumstances of each case, and that the trial court appropriately retains discretion in determining whether disqualification is appropriate in these matters.
Inquiry #2:
Should the court determine that Lawyer is disqualified from representing Lawyer Firm PLLC at trial, is Lawyer prohibited from representing Lawyer Firm PLLC in the motion for summary judgment?
Opinion #2:
No. Rule 3.7(a) states, “A lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness...” (emphasis added). Rule 3.7’s prohibition on a lawyer acting as both advocate and witness in a particular matter is confined to a lawyer’s representation of a client at trial and does not automatically extend to the lawyer’s representation of a client in pretrial proceedings. Absent a conflict created by the lawyer’s representation in the matter or court order disqualifying the lawyer, a lawyer may represent a client in pretrial proceedings even if the lawyer is likely to be a necessary witness at trial. However, the Ethics Committee notes that some courts would disqualify a lawyer under Rule 3.7 from participating in pretrial activities if the pretrial activities involve evidence that, if admitted at trial, would reveal the lawyer’s dual role. See, e.g., Williams v. Borden Chem. Inc., 501 F. Supp. 2d 1219 (S.D. Iowa 2007) (lawyer, who was to serve as a fact witness, was disqualified from acting as trial counsel but was permitted to engage in pretrial activities other than taking or appearing at depositions); Lowe v. Experian, 328 F. Supp. 2d 1122 (D. Kan. 2004) (disqualification was not required for lawyer’s pretrial activities, “such as participating in strategy sessions, pretrial hearings or conferences, settlement conferences, or motions practice,” but may be necessary if pretrial activities include “obtaining evidence which, if admitted at trial, would reveal the attorney’s dual role[.]”).