§ 18.09 COMPETENCY OF ATTORNEYS

• Jurisdiction: United States

§ 18.09. COMPETENCY OF ATTORNEYS

Neither Rule 601 nor any other evidence rule makes an attorney incompetent to testify. Hence, an attorney may be called as a witness in a case in which the attorney is not acting as counsel. Of course, the attorney-client privilege would apply to confidential communications between an attorney and a client.⁷⁵

A problem arises in cases in which an attorney who is acting as counsel is called to testify. The rules of professional responsibility generally preclude an attorney from accepting employment or continuing to represent a client in such a case (i.e., witness-advocate rule),⁷⁶ and some courts will disqualify an attorney on this basis.⁷⁷ A difficulty can arise if counsel interviews adverse witnesses without another person present and counsel later wants to impeach that witness at trial with a prior inconsistent statement.⁷⁸ If the witness denies making the prior statement, counsel is precluded from testifying under the Model Rule's witness-advocate rule.

United States v. Edwards⁷⁹ illustrates a different issue. The prosecutor found a critical item of evidence in a bag containing cocaine — i.e., a receipt with the defendant's name on it. Instead of taking the stand as a witness and recusing himself as prosecutor, he pursued a line of questioning that indicated his personal knowledge of the evidence's reliability. The Ninth Circuit reversed: "[W]hen a prosecutor is personally involved in the discovery of a critical piece of evidence, when that fact is made evident to the jury, and when the reliability of the circumstances surrounding the discovery of the evidence is at issue, the prosecutor's participation in the trial of the defendant constitutes a form of improper vouching."⁸⁰

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Notes:

^[75] See infra chapter 38 (discussing attorney-client privilege).

^[76] See Model Rule 3.7(a) ("A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless: (a) the testimony relates to an uncontested issue; (b) the testimony relates to the nature and value of legal services rendered in the case; or (c) disqualification of the lawyer would work substantial hardship on the client.").

^[77] See Gonzalez v. State, 117 S.W.3d 831, 837-38 (Tex. Crim. App. 2003) ("Counsel may be disqualified under the disciplinary rules when the opposing party can demonstrate actual prejudice resulting from opposing counsel's service in the dual role of advocate-witness. Allegations of one or more violations of...