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Rule 4-3.7 Lawyer as Witness
(a) When Lawyer May Testify. A lawyer shall not act as advocate at a
trial in which the lawyer is likely to be a necessary witness on behalf of the
client unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony will relate solely to a matter of
formality and there is no reason to believe that substantial evidence will be
offered in opposition to the testimony;
(3) the testimony relates to the nature and value of legal
services rendered in the case; or
(4) disqualification of the lawyer would work substantial
hardship on the client.
(b) Other Members of Law Firm as Witnesses. A lawyer may act as advocate
in a trial in which another lawyer in the lawyer's firm is likely to be called
as a witness unless precluded from doing so by rule 4-1.7 or 4-1.9.
COMMENT
Combining the roles of advocate and witness can prejudice
the tribunal and the opposing party and can also involve a conflict of interest
between the lawyer and client.
The trier of fact may be confused or misled by a lawyer
serving as both advocate and witness. The combination of roles may prejudice
another party's rights in the litigation. 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.
To protect the tribunal, subdivision (a) prohibits a lawyer
from simultaneously serving as advocate and necessary witness except in those
circumstances specified. Subdivision (a)(1) recognizes that if the testimony
will be uncontested, the ambiguities in the dual role are purely theoretical.
Subdivisions (a)(2) and (3) recognize that, where the testimony concerns the
extent and value of legal services rendered in the action in which the testimony
is offered, permitting the lawyers to testify avoids the need for a second trial
with new counsel to resolve that issue. Moreover, in such a situation the judge
has first-hand knowledge of the matter in issue; hence, there is less dependence
on the adversary process to test the credibility of the testimony.
Apart from these 2 exceptions, subdivision (a)(4) recognizes
that a balancing is required between the interests of the client and those of
the tribunal and the opposing party. Whether the tribunal is likely to be misled
or the opposing party is likely to suffer prejudice depends on the nature of the
case, the importance and probable tenor of the lawyer's testimony, and the
probability that the lawyer's testimony will conflict with that of other
witnesses. Even if there is risk of such prejudice, in determining whether the
lawyer should be disqualified, due regard must be given to the effect of
disqualification on the lawyer's client. It is relevant that one or both parties
could reasonably foresee that the lawyer would probably be a witness. The
conflict of interest principles stated in rules 4-1.7, 4-1.9, and 4-1.10 have no
application to this aspect of the problem.
Because the tribunal is not likely to be misled when a lawyer
acts as advocate in a trial in which another lawyer in the lawyer's firm will
testify as a necessary witness, subdivision (b) permits the lawyer to do so
except in situations involving a conflict of interest.
In determining if it is permissible to act as advocate in a
trial in which the lawyer will be a necessary witness, the lawyer must also
consider that the dual role may give rise to a conflict of interest that will
require compliance with rules 4-1.7 or 4-1.9. For example, if there is likely to
be substantial conflict between the testimony of the client and that of the
lawyer, the representation involves a conflict of interest that requires
compliance with rule 4-1.7. This would be true even though the lawyer might not
be prohibited by subdivision (a) from simultaneously serving as advocate and
witness because the lawyer's disqualification would work a substantial hardship
on the client. Similarly, a lawyer who might be permitted to simultaneously
serve as an advocate and a witness by subdivision (a)(3) might be precluded from
doing so by rule 4-1.9. The problem can arise whether the lawyer is called as a
witness on behalf of the client or is called by the opposing party. Determining
whether such a conflict exists is primarily the responsibility of the lawyer
involved. If there is a conflict of interest, the lawyer must secure the
client's informed consent. In some cases, the lawyer will be precluded from
seeking the client's consent. See rule 4-1.7. If a lawyer who is a member of a
firm may not act as both advocate and witness by reason of conflict of interest,
rule 4-1.10 disqualifies the firm also. See terminology for the definition of
"confirmed in writing" and "informed consent."
Subdivision (b) provides that a lawyer is not disqualified
from serving as an advocate because a lawyer with whom the lawyer is associated
in a firm is precluded from doing so by subdivision (a). If, however, the
testifying lawyer would also be disqualified by rule 4-1.7 or 4-1.9 from
representing the client in the matter, other lawyers in the firm will be
precluded from representing the client by rule 4-1.10 unless the client gives
informed consent under the conditions stated in rule 4-1.7.
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