Lawyer-Witness Participation in Pre-Trial Proceedings
Although precluded from acting as trial counsel, a lawyer who is likely
to be a necessary witness at trial ethically may assist substitute counsel
in both pre-trial matters and trial preparation and may continue him/herself
to represent the party in most pre-trial proceedings.
Rule 3.7(a) (Lawyer As Witness)
Rule 1.7(b) (Conflict of Interest)
Rule 1.4(b) (Communication)
The inquirer has represented a client (the association) for several
years. The association currently is involved in litigation in which
opposing counsel successfully sought inquirer’s disqualification from
representation based on the opposition’s intention to call inquirer
as a witness. The association retained substitute trial counsel whom
inquirer has assisted in preparing for trial.1
Opposing counsel objects to the assistance
that inquirer has been providing to substitute counsel. Opposing counsel
contends that this assistance violates Rule 3.7(a). Inquirer believes
the court’s disqualification of him as trial counsel does not affect
his ability to assist his client in preparation for trial; he is limited
only in his ability to represent the association at trial.
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. . . .”
As Comment  explains, the advocate-witness rule is intended to prevent
prejudice that could result from the lawyer’s assumption of dual roles
at trial: “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 an analysis of the proof.”
Beyond the confusion that this combination
of roles might create, the rule is justified on at least three other
bases: (1) it is necessary to prevent the possibility that, in addressing
the jury, the lawyer will appear to vouch for his own credibility; (2)
it will prevent the difficult situation that occurs when an opposing
counsel must cross-examine a lawyer-adversary and seek to impeach his
credibility; and (3) the rule also will prevent the implication that
the testifying lawyer is distorting the truth for his/her client’s benefit.
Culebras Enterprises Corp. v. Rivera-Rios, 846 F.2d 94, 99 (1st Cir.
1988), citing Bottaro v. Hatton Associates, 680 F.2d 895, 897 (2d Cir.
1982); International Electronics v. Flanzer, 527 F.2d 1288, 1294 (2d
Cir. 1975); MacArthur v. Bank of New York, 524 F. Supp. 1205, 1208 (S.D.N.Y.
1981). See also A.B.A., Annotated Model Rules of Professional Conduct,
at 387-89 (2d ed. 1992).
All of the reasons underlying the rule relate
to concerns that might arise only at trial. Indeed, Rule 3.7(a)’s reach
is limited to the trial stage, i.e., the lawyer is prohibited from acting
only as “advocate at a trial” when he or she is likely to
be a necessary witness. Given the Rule’s express limitation and the
trial-stage purposes it is intended to serve, we conclude that a lawyer
who is likely to be a necessary witness at trial may represent a client
in most pre-trial matters. This includes, but is not limited to, taking
witness depositions, pre-trial discovery and argument of most pre-trial
motions, and also assisting in trial preparation.2
It follows a fortiori that the lawyer-witness may assist substitute
counsel in similar matters.
The American Bar Association Committee on Ethics
and Professional Responsibility considered the same issue in Informal
Opinion 89-1529 (10/20/89). In reaching the same conclusion under substantially
the same rule,3
the ABA committee found several reasons for permitting the lawyer-witness
to represent the client advocate during the pre-trial stage: (1) the
case may be settled in advance of trial so that the lawyer is not needed
to testify; (2) the lawyer’s testimony may be replaced with other evidence
at trial; (3) the client may choose to forego the lawyer’s testimony
rather than lose the lawyer’s services at trial; (4) there is little
likelihood of prejudice to the client or the justice system since the
Rules now permit the lawyer’s partner to act as trial counsel; and (5)
the lawyer-witness may have the most knowledge about the case, and it
would be unfair to the client not to permit that lawyer to participate
in pre-trial proceedings.
We agree, and add that the Rules should not
be interpreted to interfere unnecessarily with a client’s choice of
counsel. Where none of the Rule 3.7’s purposes are served by pre-trial
disqualification, such a disqualification of the advocate-witness would
serve only to deprive the client of the lawyer or firm which not only
knows the case best but with whom the client most likely has an established
relationship. See Norell, Inc. v. Federated Department Stores, Inc.,
450 F. Supp. 127, 130 (S.D.N.Y. 1978).
Courts considering the issue of advocate-witness
participation in pre-trial matters generally have permitted such participation.
In Culebras Enterprises, supra at 99, the First Circuit squarely was
asked and squarely refused to construe Rule 3.7 broadly: “The question
is whether the prohibition against acting as ’advocate at a trial’ should
be read as broadly prohibiting the rendition of case-related out-of-court
services prior to trial. We think not.”
Even under the former and arguably broader
rule, DR 5-102(B),4
Courts permitted advocate-witnesses 4 to participate in pre-trial proceedings
though disqualified or likely to be disqualified from representation
at trial. See Moyer v. 1330 Nineteenth Street Corp., 597 F. Supp. 14,
17 (D.D.C. 1984); Brotherhood Railway Carmen v. Delpro Co., 549 F. Supp.
780, 790 (D. Del. 1982); MacArthur v. Bank of New York, supra at 1211
(“The disqualified firm may consult with defendant’s substitute
counsel and assist in preparing for trial.”); Norell, Inc., supra.
But see Munk v. Goldane National Corp., 697 F. Supp. 784, 788 (S.D.N.Y.
1988) (interests of justice best served if advocate-witness disqualified
from pre-trial proceedings); General Mill Supply Co. v. SCA Services,
697 F.2d 704, 716 (6th Cir. 1982) (“The most acute evils we would
foresee from failure to enforce [DR 5-102] in this instance would occur
in the pretrial period. . . .”)
Although noting that Rule 3.7 applies “specifically
to service ‘as advocate at a trial,’” the ABA ethics committee
nonetheless believed “the policy behind the prohibition applies
to any situation where the lawyer[-witness] is placed in the position
of arguing the lawyer’s own veracity” in a pre-trial proceeding.
Inf. Op. 89-1529, supra note 1. The ABA thus felt that a lawyer should
not argue, without the client’s consent, a pre-trial motion where the
lawyer’s testimony is both disputed and material to a contested matter being
decided before trial. In a single-sentence footnote, the Court in Brotherhood
of Railway Carmen, supra note 20, also precluded the advocate-witness
from participating in pre-trial motions that required him to testify
to the matter at issue. Neither opinion cited an ethics rule or previous
While in some instances it may be best for
a lawyer-witness to decline representation of a client in a pre-trial
motion requiring argument of his/her own testimony, D.C. Rule 3.7(a),
by its terms, extends only to prohibit advocacy at a trial. Although
it is identical to ABA Model Rule 3.7(a), we decline to extend the D.C.
rule beyond its terms. Had the District of Columbia Court of Appeals
intended the rule to apply beyond prohibition of courtroom representation,
the rule could have been so written.5
However, in any case in which the lawyer’s professional judgment on
behalf of a client may be adversely affected by his/her role as a witness,
the lawyer may not represent the client in pre-trial motions without
the client’s consent. Rule 1.7(b)(4). A lawyer-witness should carefully
consider whether this is the case when his/her own testimony is at issue
in a pre-trial motion.
Another representational issue that is raised
concerns the lawyer-witness representing the client at the lawyer’s
own pre-trial deposition. While Rule 3.7 does not prohibit such representation,
other ethical issues may be raised when a lawyer assumes both roles
at his/her own deposition. Chief among these issues is whether the lawyer-witness
will be able to protect his/her client’s confidences and secrets diligently,
as required by Rule 1.6. The ABA Committee, in cautioning against this
practice, thought the “better practice is that another lawyer serve
as counsel to the client at that deposition.”
Once it becomes apparent that the lawyer likely
will be a necessary witness at trial, it follows from Rule 1.4(b)6
that the advocate-witness must inform his/her client of this development
and seek the client’s informed consent to the continued pre-trial representation.
The client should understand the effect that withdrawal prior to trial
will have, including the financial impact, if any, of retaining new
counsel and the point at which new counsel should be retained. As with
any withdrawal from employment, the advocate-witness is bound by the
requirements of Rule 1.16(d).
Inquiry No. 91-10-38
Adopted: May 19, 1992
The events in this inquiry
occurred before the adoption of the Rules of Professional Conduct.
Under the former Code of Professional Responsibility, the inquirer’s
disqualification under DR 5-102(a) was imputed to his law firm. Rule
3.7 removes this imputed disqualification. Assuming that the applicable
court order would permit, the change effected by Rule 3.7 would allow
previously-disqualified law firms to resume representations in which
a firm member is a necessary witness.
This is subject to any
applicable rules of court, including rules regarding witnesses.
D.C. and Model Rule
3.7(a) are identical; subsection (b) of each rule is substantially
that a lawyer “shall withdraw from the conduct of the trial”
if the lawyer learns or it is obvious that the lawyer ought to be
called as a witness; the lawyer’s firm “shall not continue
representation in the trial.”
For example, in Rule
3.4 (Fairness to Opposing Party and Counsel), subsections (d) and
(e) clearly distinguish between pretrial and trial obligations.
Rule 1.4(b) states: “A
lawyer shall explain a matter to the extent reasonably necessary to
permit the client to make informed decisions regarding the representation.”