CHAPTER 2 - 2-9 LAWYER AS WITNESS

• Jurisdiction: United States

2-9 Lawyer as Witness

A lawyer may not advocate for a client in a matter where the lawyer will be called as a witness unless the lawyer's testimony would involve an uncontested matter, the lawyer's fee¹⁵² or unless disqualification of the lawyer would work substantial hardship on the client.¹⁵³ The origins of this rule are in the traditional prohibition on a person testifying in his own case. The idea was that if the client could not testify, the client's lawyer should also be barred. The modern rationale for the rule is that it would be improper for the same person to be both witness and advocate.

This rule does not prohibit another lawyer in the same firm from representing the client unless precluded from doing so by the conflicts rules.¹⁵⁴ Note also that the rule does not prohibit the lawyer from being involved in the matter up to the point of trial.¹⁵⁵ If, however, after pretrial matters are concluded and the opposing party still elects to call the lawyer as a witness, he may be disqualified.¹⁵⁶

In one matter, a court rejected an argument that Rule 3.7 could not be used as a basis for disqualification prior to the start of trial.¹⁵⁷ In another case, a court refused to disqualify an attorney on Rule 3.7 grounds when it was not shown that he was a necessary witness and the conversations between himself and his former client were privileged and not admissible.¹⁵⁸ Disqualification was also avoided when it was shown that the information was available from other witnesses.¹⁵⁹ A lawyer was disqualified when his testimony was deemed to be both relevant to the proceeding and unobtainable elsewhere.¹⁶⁰ A lawyer was not disqualified when she was one of the defendants in the case and had been involved in the matter for many years as both a litigant and as counsel for one of the parties.¹⁶¹ A lawyer was also not disqualified in a case where she was both advocate and party.¹⁶² Despite the exhortations in the preamble to the Rules of Professional Conduct that the rules should not be used as "procedural weapons" in litigation, virtually all of the Rule 3.7 jurisprudence involves motions to disqualify opposing counsel. Lawyers have been disqualified in criminal cases where their testimony was necessary to prove some element of the prosecution.¹⁶³ The rule has also been applied in the context of civil cases.¹⁶⁴ The authors are aware of no Connecticut cases where either the Grievance Committee or a court has imposed discipline for a violation of the "lawyer witness"...