Formal Opinion No. 78�disqualification of the Advocate/witness (revised June 18, 1994, May 10, 1997, October 20, 2012, and February 2, 2013)
| Publication year | 2013 |
| Pages | 23 |
In and Around the Bar
CBA Ethics Committee Formal Opinions
Introduction and Scope
This opinion provides ethical guidance when a lawyer who will serve as an advocate at trial or another lawyer in the trial advocate’s firm may also be called as a witness. The opinion also discusses the ethical limitations and considerations of subpoenaing or disclosing another party’s trial advocate (or another lawyer in the trial advocate’s firm) as a witness or potential witness.
Although Rule 3.7 of the Colorado Rules of Professional Conduct (Colo. RPC or Rules) is most often invoked as the basis for a motion to disqualify another party ’s lawyer, rather than as the basis for lawyer discipline, this opinion does not purport to be a legal opinion regarding the circumstances under which a motion to disqualify should be filed by a lawyer, or granted or denied by a tribunal.
Syllabus
A lawyer may not both serve as an advocate at trial and testify as a necessary witness at a trial except as permitted under one of the exceptions in Colo. RPC 3.7(a). A lawyer who is a necessary witness generally may act as an advocate in pretrial activities unless the lawyer’s participation in a particular pretrial activity would undermine the purpose of Rule 3.7.
Unless precluded from doing so by Colo. RPC 1.7 or 1.9, 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.
In the representation of a client, a lawyer may be required to obtain discovery from, or call as a witness at trial, a lawyer who represents an adverse party. No ethical proscription automatically prohibits a lawyer from taking such action. However, a lawyer should not routinely or lightly subpoena, identify as a potential witness, or call as a witness an opposing party ’s trial counsel (or another lawyer in the opposing lawyer’s firm). Doing so solely as a contrivance to disqualify opposing counsel (whether or not combined with a motion to disqualify) violates the Rules.
Analysis
Construing the predecessor Colorado Code of Professional Responsibility (Colorado Code), the Colorado Supreme Court 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 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.
Williams v. District Court, 700 P.2d 549, 553 (Colo. 1985) (Williams). Colo. RPC 3.7, cmt [1] reflects similar considerations.[1]
I. Analysis of Advocate -Witness Issues Under the Rules
A number of the Rules bear on the propriety of a lawyer simultaneously acting as trial advocate and testifying as a witness at trial, or of another lawyer in the testifying lawyer’s firm acting as a trial advocate.
A. Colo. RPC 3.7
Colo. RPC 3.7 directly addresses the advocate –witness situation. It is divided into two subsections: the first establishes the general rule that a necessary witness may not be a trial advocate and enumerates the exceptions to that rule; the second governs when another non-testifying lawyer in a testifying lawyer’s firm may and may not serve as trial advocate.[2]
1. Colo. RPC 3.7(a): The General Rule
Colo. RPC 3.7 provides that, absent an applicable exception, a trial advocate may not simultaneously testify as a necessary witness in the same matter: "A lawyer shall not act as an advocate in a trial in which the lawyer is likely to be a necessary witness unless . . ." (Emphasis added.).
a. Necessity of Lawyer’s Testimony
Before a lawyer is precluded from serving as an advocate at trial under Colo. RPC 3.7, it must be "likely" that the lawyer will be a "necessary" witness. Compare Colorado Code DR 5-l 01(B) (lawyer must decline employment if the lawyer "ought to be called" as a witness). The "necessary" witness standard requires "an even more specific showing of necessity" than under the prior Code. Security Gen. Life Ins. Co. v. Superior Court, 149 Ariz. 332, 718 P.2d 985 (1986) (Rule 3.7(a) "requires a showing that the proposed testimony is relevant, material, and unobtainable elsewhere"). Courts have held that the advocate’s testimony must be truly necessary, and not merely cumulative, and that the court may delay ruling on a motion to disqualify until it can determine whether another witness’s testimony can adequately replace the lawyer’s testimony. Rule 3.7(a) is "less prone [than the predecessor Code provision] to exploitation by opposing parties and more compatible with each party’s interest in retaining counsel of choice." Cannon Airways, Inc. v. Franklin Holdings Corp., 669 F.Supp. 96, 100 (D.Del. 1987). The "necessary witness" test is flexible and the result depends on the circumstances. Thus, the naming of a party’s lawyer does not automatically render the named lawyer a "necessary witness" under Colo. RPC 3.7. While the availability of other witnesses to testify regarding the same matters as to which the lawyer has knowledge usually will render the lawyer an "unnecessary" witness, that determination also depends on the particular circumstances.
b. Prohibition Limited to Advocacy at Trial
Despite the breadth of its general...
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