Whoops—Legal Malpractice Prevention, 1216 COBJ, Vol. 45, No. 12
| Author | J. Randolph Evans, Shari L. Klevens, Lino S. Lipinsky, Lauren P. Carboni, J. |
J. Randolph Evans, Shari L. Klevens, Lino S. Lipinsky, Lauren P. Carboni, J.
Attorney-Witnesses Face a Host of Hazards
Increasingly, parties to litigation are seeking testimony from attorneys. Sometimes clients want their attorneys to testify to buttress their case or otherwise support their legal position. Other times, litigation adversaries attempt to subpoena their opposing counsel as part of a larger litigation strategy. Attorneys may also be called as fact witnesses to the events at issue.1
Although many attorneys may be comfortable with the idea of testifying, attorney testimony is comparable to high-stakes poker, and the decision to testify should not be taken lightly. In addition to the risks inherent for all witnesses, such as perjury or impeachment, attorneys face unique additional hazards, such as creating a conflict of interest with a client, and other potential ethical implications, which only raise the stakes higher.
For this reason, an attorney who receives a subpoena or other request for testimony should carefully consider the associated risks, and take appropriate steps to mitigate those risks. Upon receiving such a request or subpoena, an attorney should first ask, “Who wants the testimony?” The answer to that question can determine what preventative steps are necessary to protect both the attorney and the attorney’s law practice.
This article discusses common parties who may seek attorney testimony and addresses the risks associated with each type of request.
Client Requests
Sometimes clients ask their attorney to testify on their behalf because they believe the attorney is best situated to support their cause. These types of requests occur only in limited situations, however, such as where a client asserts the “advice of counsel” defense or the attorney is a fact witness regarding the negotiation of an agreement that has become the subject of a dispute.
An attorney testifying for a client implicates several significant risks. First, the moment an attorney testifies on behalf of a client, the client’s attorney–client privilege and work product protections are potentially waived because the privilege cannot be used as both a sword and shield.2
Of course, it is possible to offer testimony limited to topics that segregate privileged and non-privileged information.3 The risks of successfully walking that line are so great, however, that efforts to wall off privileged information rarely succeed. The attorney should disclose this risk to the client, who should assume the risk through informed consent provided in writing. Because testifying on privileged topics may waive certain protections the client might otherwise enjoy, the first step for an attorney at a law firm with its own in-house counsel is to notify such in-house counsel of the client’s request for testimony or of the informed consent. Attorneys whose organizations do not have an in-house counsel position should consult with outside counsel.
Second, the Colorado Rules of Professional Conduct bar some attorneys, such as litigators, from continuing the representation after testifying on a client’s behalf in most circumstances.4 State law varies regarding the degree to which testifying attorneys can continue to participate in a trial as advocates for clients. In Colorado, an attorney cannot act as an advocate and a witness in the same case except under limited circumstances.5 Colo. RPC 3.7(a) expressly provides that “a lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless: (1) the testimony relates to an uncontested issue; (2) the testimony relates to the nature and value of legal services rendered in the case; or (3) disqualification of the lawyer would work substantial hardship on the client.”6 When an attorney’s testimony is likely to create a conflict of interest with a current or former client, the attorney must obtain the client’s written, informed consent before testifying.7
Third, attorney testimony can create a conflict of interest between the client and the attorney’s law practice.8 When testifying, an attorney not only must consider what is best for the client, but also must be cognizant of how providing testimony under oath might adversely affect his law practice. In addition to the risk of an allegation of perjury, there are risks that the testimony might suggest a violation of the Rules of Professional Conduct or the standard of care, both as evidence of a deviation from the applicable standard of care and as an admission under...
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