IV. Exceptions to the Advocate-witness Rule

• Library: Professional Responsibility in Litigation (ABA) (2016 Ed.)

IV. Exceptions to the Advocate-Witness Rule

Where Model Rule 3.7(a) applies, it becomes necessary to determine if any of its three exceptions spares the lawyer-witness from disqualification. The lawyer-witness facing potential disqualification bears the burden of establishing the applicability of any exceptions.¹⁰⁹

A. The Uncontested Issue Exception to Model Rule 3.7(a)

The first exception is contained in Model Rule 3.7(a)(1), which permits a lawyer to act as an advocate at a trial in which the lawyer is likely to be a necessary witness, as long as the lawyer's testimony relates to an "uncontested issue."¹¹⁰ When a lawyer's testimony relates to an uncontested issue, none of the underlying policies against allowing the lawyer to occupy the dual roles of advocate and witness are implicated. As the commentary to Model Rule 3.7 explains, if the lawyer's testimony will be uncontested, the ambiguities in the lawyer's dual roles "are purely theoretical."¹¹¹

For purposes of the rule, an uncontested issue is one that is not opposed or that will not be debated at trial.¹¹² It is important to understand that for Rule 3.7(a)(1) to apply the issue must be uncontested, not the facts to which the lawyer-witness might testify. If the rule were read as allowing a lawyer to testify concerning undisputed facts to support a contested issue, the exception would swallow the rule because the lawyer could testify to a range of undisputed facts but still argue the importance of those facts in resolving the contested issue.¹¹³ That approach would defeat the purpose of Rule 3.7(a) altogether.

B. The Nature and Value of Legal Services Exception

The second exception to Model Rule 3.7(a) is found in Model Rule 3.7(a)(2), which permits a lawyer who acts as a trial advocate to testify as to the nature and value of the legal services rendered in the case.¹¹⁴ In probate matters, for example, a lawyer may be required to testify concerning the fees she has charged to the estate.¹¹⁵ In many cases, the prevailing party is entitled to recover its fees from the opposing party pursuant to a fee-shifting provision in a contract or under statutory authority. In other cases, a court may award a party its attorneys' fees as a form of sanction. Regardless of the specific bases, awards of attorneys' fees are typically made after the merits of the case are decided or in a proceeding separate from the merits.¹¹⁶ The party seeking attorneys' fees supports its request with testimony from its lawyers, whether "live" at a hearing, or by way of affidavit. It would make no sense to disqualify the lawyers who handled the substantive aspects of the case from representing the client in the attorneys' fees aspect of the litigation. After all, those lawyers know the most about the representation and are best able to explain the reasons for the various actions, activities, circumstances, or decisions that underpin the request for compensation. Such disqualification would likely delay the proceedings and increase the costs.¹¹⁷ Any fee award will be determined by the court and there is no danger that the judge will be confused by the lawyers' dual roles. Moreover, because the court is familiar with the case, there is less dependence on the adversary process to test the credibility of the lawyers' testimony.¹¹⁸

An adversary might resist a lawyer's testimony as to the nature and value of the lawyer's services or those of others in her firm on the basis that the lawyer's self-interest disqualifies her as a witness. Such challenges are baseless. The lawyer's interest in the case will be disclosed during direct examination and likely explored on cross-examination, and it is classically left to the fact-finder to weigh the accuracy of the lawyer's testimony and to judge her credibility as a witness.¹¹⁹

The "nature and value" of a lawyer's legal services rendered in a case may include non-monetary components or aspects. For example, in In re Marriage of Perry,¹²⁰ the Montana Supreme Court held that Rule 3.7(a)(2) permitted a lawyer to testify that her disqualification would work a substantial hardship on her client.¹²¹ By way of further example, if an opponent seeks sanctions against a lawyer's client for allegedly asserting frivolous claims and the client raises an advice of counsel defense, the lawyer might be permitted to represent the client at trial and testify as a witness on the basis that the adversary's allegations relate to the nature and value of the lawyer's services to the client.¹²² One state ethics committee has concluded that the allegations presented in this scenario "speak directly" to the nature and value of legal services exception in Model Rule 3.7(a)(2).¹²³ The wisdom of a lawyer serving as both an advocate and a witness in this situation is a separate question, however, and will depend on the facts of the particular case.

C. The Substantial Hardship Exception to Model Rule 3.7(a)

The final exception is found in Model Rule 3.7(a)(3), which allows a lawyer who is likely to be a necessary witness to nonetheless represent the client at trial if "disqualification of the lawyer would work substantial hardship on the client."¹²⁴ The term "disqualification" in Model Rule 3.7(a)(3) and state analogs refers to a lawyer's disqualification as an advocate; it does not suggest the exclusion of a lawyer's testimony as a witness.¹²⁵ The "client" the substantial hardship exception protects is, of course, the client of the testifying attorney, not the opponent.¹²⁶

Model Rule 3.7(a)(3) provides an equitable exception to an otherwise strict stance on disqualifying lawyer-witnesses. In essence, Model Rule 3.7(a)(3) allows a lawyer-witness's continued representation of a client any time the detriment to the client caused by the lawyer's disqualification outweighs the prejudice to the opponent caused by the lawyer's dual roles, although courts weighing substantial hardship claims normally dig deeper than that. As one would expect, determining whether a lawyer's disqualification will cause a client substantial hardship is a case-specific exercise. Courts typically consider a variety of factors when weighing substantial hardship arguments, including (1) the nature of the case; (2) the financial hardship that disqualification will likely visit on the client, focusing on the stage of the proceedings at which disqualification is sought; (3) the time at which the lawyer-witness became aware of the likelihood of his testimony; and (4) whether the client has secured alternative representation or is easily able to do so.¹²⁷ A court may factor into this balancing its own interests, although the tribunal's interests often will overlap with the parties' interests, and the fact that a court subordinates its own interests to those of the parties will not invalidate its substantial hardship analysis.¹²⁸

Whether encompassed within one of the foregoing factors or in addition to them, courts should also consider the timing of the disqualification motion,¹²⁹ including situations where the timing suggests that the motion is being filed to gain a tactical advantage or where the moving party has unreasonably delayed in acting. In any event, courts must perform the Rule 3.7(a)(3) balancing in all cases in which neither of the other two exceptions applies.¹³⁰

Courts narrowly construe the substantial hardship exception.¹³¹ Indeed, to do otherwise would risk allowing the exception to swallow the rule. Accordingly, to avoid its lawyer's disqualification on undue hardship grounds, a party must demonstrate prejudice beyond the normal delay, expense, and inconvenience associated with changing counsel.¹³² A court is unlikely to find substantial hardship where a case is straightforward, such that replacement counsel would not require specialized knowledge or expertise;¹³³ where the client is easily able to hire substitute counsel;¹³⁴ where another lawyer in the same firm or office is readily available to replace the disqualified law-yer-witness;¹³⁵ where existing local counsel is available to step into the lead counsel role;¹³⁶ or where the client has substitute counsel in place.¹³⁷ Courts also may consider the time and money the client has invested in the lawyer to be disqualified, as well as proximity to trial.¹³⁸ The less time or money the client has invested, or the more remote the trial date, the less likely a court is to find substantial hardship. In Stewart v. Bank of America,¹³⁹ for example, the court found that the plaintiff would suffer no hardship from his lawyer's disqualification because no discovery had taken place, no dispositive motions had been filed, and a trial date had not been set.¹⁴⁰ In another case, the court found...