Cba Ethics Committee Opinion Formal Opinion No. 78: Disqualification of the Advocate/witness
| Publication year | 1994 |
| Pages | 2087 |
1994, September, Pg. 2087. CBA Ethics Committee Opinion Formal Opinion No. 78: Disqualification Of the Advocate/Witness
The purpose of this opinion is to provide guidance in situations where an advocate may also be called as a witness.(fn1) Also discussed are the ethical limitations and considerations of subpoenaing, listing or identifying another party's attorney as a witness or potential witness.
Although the applicable Colorado Rules of Professional Conduct ("Colorado Rules") are frequently, if not predominantly, used as the basis of a motion to disqualify another party's counsel, rather than as a basis for attorney discipline, this Opinion does not purport to be a legal opinion as to the circumstances under which a motion to disqualify should be filed, granted or denied.
Subject to certain enumerated limited exceptions, an attorney may neither accept nor continue employment as an advocate if the lawyer is likely to be a necessary witness in the case, or if another lawyer in the firm is likely to be called as a witness unless the requirements of Colorado Rules 1.7 and 1.9, regarding general conflicts of interest, have been met.
An advocate is not per se ethically disqualified from representing a client in litigation arising from a business matter or other transaction in which the advocate, or another lawyer in the advocate's firm, previously acted as counsel, or in litigation involving facts developed by the advocate's investigation. However, counsel must be cognizant of the possible basis for disqualification inherent in such situations and should decline employment or withdraw from representation if the standards discussed herein are violated.
In the zealous representation of a client's cause, a lawyer may be required to obtain discovery from, or call as a witness at trial, an attorney in a law firm representing another party. Again, there is no ethical standard that automatically prohibits a lawyer from taking such action. However, subpoenaing, identifying or calling an opponent party's attorney, or a non-advocate attorney in an opponent party's law firm, must not be done routinely or lightly. Doing so (whether or not combined with a motion to disqualify) solely as a contrivance to disqualify opposing counsel, may constitute a violation of the Colorado Rules.
Assuming the necessary preconditions are met, under current Colorado case law the subpoenaing of a party's attorney will be treated by the trial court as the functional equivalent of a motion to disqualify, whether or not a motion to disqualify or to withdraw is filed.
There is no per se ethical prohibition against an attorney being a witness on behalf of a client. Rather, the Colorado Rules limit only the ability of an attorney to serve as an advocate at trial if that attorney "is likely to be a necessary witness," or in a matter in which another attorney in the firm is "likely to be called as a witness." (Emphasis added.)
Construing the predecessor Colorado Code of Professional Responsibility ("Code"), the Colorado Supreme Court has observed:
A lawyer who intermingles the functions of advocate and witness diminishes his effectiveness in both roles ... [T]he lawyer is placed in the unseemly position of arguing his own credibility to the jury .... Obviously a lawyer's duty
Williams v. The District Court for the County of El Paso, Colorado, 700 P.2d 549, 553 (Colo. 1985) [hereinafter Williams]. Similar considerations are reflected in Colorado Rule 3.7, comment [1].(fn2)to exercise independent judgment on behalf of his client will be even more seriously jeopardized when the lawyer is called as a witness to give testimony adverse to his client.
Courts have long recognized the prejudice created by disqualification of an advocate, and the potential for abuse if an attorney may be disqualified simply by being listed or subpoenaed by an opposing party. Colorado Rule 3.7 follows the trend of the ABA's Model Rules of Professional Conduct ("Model Rules") in relaxing the prohibitions contained in the prior Code [see Grogan v. Taylor, 1993 W.L. 524131, 8, slip. op. (Dec. 16, 1993 Colo.App.), modified (Feb. 10, 1994)] [hereinafter Grogan], with two important differences.
First, Colorado Rule 3.7(b) reverses a key presumption, and apparently the burden of proof, of Model Rule 3.7(b). Model Rule 3.7(b) provides:
A lawyer may act as an 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 1.7 or Rule 1.9. (Emphasis added.)
Colorado Rule 3.7(b), on the other hand, provides:
A lawyer shall not act as an advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless the requirements of Rule 1.7 or 1.9 have been met. (Emphasis added.)
The Colorado Committee Comments to Colorado Rule 3.7(b) reinforce the deliberate attempt to "change[] the emphasis in (b) considerably ...."
Second, in analyzing whether an advocate is barred from simultaneously acting as a witness under the general conflict of interest rule expressed in Rule 1.7, the Colorado Rules elevate a comment to the Model Rules to the status of a rule:
For the purposes of this Rule, a client's consent cannot be validly obtained in those instances in which a disinterested lawyer...
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