III. Understanding the Advocate-witness Rule

LibraryProfessional Responsibility in Litigation (ABA) (2016 Ed.)

III. Understanding the Advocate-Witness Rule

A. The Scope and Reach of Model Rule 3.7(a)

Again, Model Rule 3.7(a) provides that "[a] lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness,"20 subject to certain exceptions. Rule 3.7(a) operates only to disqualify attorneys in their representational capacity; it does not bar their testimony as witnesses.21 Thus, the rule does not apply to a lawyer who is appearing pro se,22 nor does it apply to a lawyer who is represented by another lawyer in a proceeding. The rule applies without regard for which party the lawyer will testify.23 Because the lawyer-witness rule applies where a lawyer representing a client before a jury seeks to serve as a witness in that very proceeding, the fact that a client's former attorney will likely be a necessary witness at trial provides no basis to object to the testimony.24

Breaking down the rule, the first aspect to be addressed is its limitation to trials. The term "trial" encompasses arbitrations and other judicial and quasi-judicial proceedings.25 The rule generally does not apply to a lawyer-witness's pretrial involvement in a case,26 or to a lawyer-witness's representation of a client in other non-advocacy roles.27 Even in a case in which a lawyer-witness would be disqualified if she were to represent a client at trial, she generally may represent the client in other ways in the litigation, such as preparing documents or pleadings, preparing and responding to written discovery, researching legal issues, handling pretrial negotiations, appearing at mediations and settlement conferences, and so on.28 A lawyer-witness may represent a client in non-evidentiary pretrial hearings.29 A lawyer may even testify at a pretrial hearing without being disqualified.30 In the criminal context, a defense lawyer may testify at a hearing on a client's motion to withdraw a guilty plea without being disqualified.31 If lawyer-witnesses are disqualified from representing clients at trial, they remain able to consult with substitute counsel and assist with trial preparation.32 Furthermore, a lawyer who is disqualified from representing a client at trial because the lawyer is a necessary witness may nevertheless represent the client in post-trial proceedings,33 including appeals.34

Given the dominant rationale for the advocate-witness rule, i.e., protecting the fact-finder from confusion, a lawyer is more likely to be disqualified where the case will be tried to a jury rather than to the court. In a bench trial, the judge should be able to differentiate between a lawyer's role as advocate or witness.35 Similarly, there is generally no reason to disqualify a lawyer-witness from representing a client in arbitration, since arbitrators should be able to separate a lawyer-witness's dual roles. The disqualification analysis cannot end at the identity of the fact-finder, however, because potential jury confusion is not the only reason for preventing lawyers from functioning as advocates at trial—the unsworn witness problem and conflicts of interest also justify disqualifying lawyer-witnesses in some cases. Certainly, the prejudicial effect that a lawyer-witness's conflict of interest may have on her client's case is a crucial consideration no matter who serves as the finder of fact. As a result, lawyer-witnesses may be disqualified even in bench trials and arbitrations on the right facts.

Although the plain language of Rule 3.7(a) limits it to trials, and it is generally true that lawyers who are disqualified from serving as advocates at trial may nonetheless represent their clients in pretrial and post-trial activities, some courts hold that disqualification outside of trial is appropriate in other cases at the discretion of the trial court.36 Such cases should be rare, however, with deviation from the rule most likely to occur where the lawyer's pretrial activity "includes obtaining evidence which, if admitted at trial, would reveal the attorney's dual role."37 Depositions accordingly pose a special concern. Because depositions often are read into evidence at trial, deposition transcripts may be used at trial to impeach witnesses or refresh their recollections, and videotaped depositions are regularly played for juries, lawyers may be disqualified from representing clients in depositions if the depositions cannot be used at trial without revealing the lawyers' dual roles.38 In fact, advocate-witness issues should not be a factor where stenographic depositions are used, because the jury does not need to be informed of the questioner's identity.39 Problems are most likely to surface where depositions are recorded on video, because the jury may see the lawyer or recognize the lawyer's voice when the video is played at trial. Even then, the lawyer's disqualification may not be required, because a court can cure possible jury confusion through less drastic means, such as by issuing a jury instruction,40 or by requiring the parties to edit the video in some reasonable fashion.41

Some courts have gone so far as to expand the rule to preclude lawyers' testimony in affidavits at summary judgment.42 Other courts expressly decline to do so,43 however, and those courts that broadly hold that Rule 3.7(a) does not apply to lawyers' pretrial activities would presumably hold that it therefore does not preclude lawyers from offering affidavits at summary judgment.44 As a practical and strategic matter, lawyers who offer affidavits in efforts to defeat or support summary judgment must consider the possibility that an affidavit may signal their necessity as witnesses at trial, and thus lead to their future disqualification. In the meantime, the fact that a lawyer offers affidavit testimony should be inconsequential from an evidentiary or procedural standpoint. Although it is generally true that evidence offered to defeat or support summary judgment must be admissible at trial, courts and lawyers alike must remember that Rule 3.7(a) disqualifies lawyers from serving in representational capacities at trial—it does not render their testimony inadmissible. Thus, a lawyer's affidavit testimony may properly be used at the summary stage of a case even though the lawyer may be disqualified from representing the client at trial.

In addition to its clear language, there is no policy reason commending the rule's application to lawyers' affidavit testimony at summary judgment. Because it is the judge who reads motions, the lawyer's dual roles should not be confusing.45 It is equally unlikely that a judge, as compared to a jury, will be unfairly influenced by the lawyer's dual roles.46 To the extent that the rule aims at client protection, it is difficult to see how a lawyer's submission of an affidavit could create a conflict of interest. If the lawyer faces a conflict because she has testimony to offer that is harmful to the client's cause, she will not offer that testimony in an affidavit; that sort of conflict is a problem where the opposing party seeks to call the lawyer as a witness, not where the lawyer volunteers testimony. In short, courts are wrong to extend Rule 3.7(a) to lawyers' affidavit testimony at summary judgment.

Looking further at the rule, what does it take to establish that a lawyer who intends to advocate for a client at trial is "likely to be a necessary witness"? Disqualification cannot be ordered upon an opponent's mere representation that the lawyer identified is a necessary witness,47 or will be called as a witness,48 or simply may be a witness.49 Conclusory allegations concerning a lawyer's role as a witness will not support the lawyer's disqualification under Rule 3.7(a).50 A court cannot disqualify a lawyer "solely on the word" of an opponent.51 Rather, a party seeking to disqualify a lawyer under Rule 3.7(a) bears the burden of proving that the lawyer's proposed testimony "is relevant, material, not merely cumulative, and unobtainable elsewhere."52 Thus, if lawyers' intended testimony is irrelevant,53 immaterial,54 cumutative,55 or is otherwise inadmissible,56 or the same evidence can be obtained from other sources,57 they are not necessary witnesses, and Rule 3.7(a) and state analogs do not operate to disqualify them as trial counsel.

Other courts apply a different standard where an opposing party wants to call a lawyer as a witness, holding that disqualification requires "a showing that the attorney will give evidence material to the determination of the issues being litigated, that the evidence is unobtainable elsewhere, and that the testimony is or may be prejudicial to the testifying attorney's client."58 The standard for showing prejudice to the testifying lawyer's client is a stringent one to prevent adverse parties from attempting to call opposing counsel as witnesses solely to disqualify them.59 The moving party must clearly establish the adverse testimony the lawyer-witness will offer; speculation that the lawyer will or must testify adversely to her client will not support disqualification.60 As where a client may seek to call its own lawyer as a witness, a party seeking to call opposing counsel will be unable to disqualify that lawyer if the lawyer's intended testimony is irrelevant, immaterial, cumulative, or obtainable from other sources.61

Schaff v. State62 is an instructive advocate-witness rule case. Donald Schaff was charged with various crimes related to the alleged sexual molestation of his minor daughter, M.S. Kevin Gough was his defense lawyer. After the jury was selected and while the court was hearing argument on pretrial motions, it was revealed that M.S. had recanted her earlier allegations of abuse in a videotaped interview with Gough at which her mother was present. Gough's assistant also heard M.S. recant. The victim's recantation was obviously key evidence. The prosecutor moved to disqualify Gough under the advocate-witness rule. The trial court granted the motion, reasoning that by...

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