§9.3 - The Lawyer-Witness Rule

• Jurisdiction: Washington

§9.3 THE LAWYER-WITNESS RULE

The lawyer-witness rule was one the original Canons of Professional Ethics adopted by the ABA in 1908. Over the years, its form has changed, and it is now found in RPC 3.7 and ABA Model Rules of Prof'l Conduct r. 3.7. Both when the Canons were adopted over 100 years ago and today, the rule generally prevents a lawyer from being an advocate before the jury and a witness before it at the same time. Although it is theoretically enforceable in a disciplinary context, practical enforcement of this rule occurs primarily in the disqualification context.

(1) The rule and its exceptions

RPC 3.7 prohibits a lawyer from "act[ing] as an advocate at a trial in which the lawyer is likely to be a necessary witness[.]" (Because LLLTs are not currently permitted to appear in court, the corresponding LLLT RPC 3.7 is simply listed as "reserved.")

RPC 3.7 cmt. 2 summarizes the rationale for generally prohibiting these dual roles:

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The tribunal has proper objection when the trier of fact may be confused or misled by a lawyer serving as both advocate and witness. The opposing party has proper objection where the combination of roles may prejudice that party's rights in the litigation. A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof.

RPC 3.7 also recognizes four practical exceptions to the lawyer-witness rule. First, RPC 3.7(a)(1) allows a lawyer to be both an advocate and a witness where the testimony will be on an uncontested matter. In that instance, RPC 3.7 cmt. 3 notes that "the ambiguities in the dual role are purely theoretical." Presumably, the parties could also address the evidence through a stipulation rather than having the lawyer testify.

Second, RPC 3.7(a)(2) allows a...