V. Model Rule 3.7(b) and Personal Versus Imputed Disqualification

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

V. Model Rule 3.7(b) and Personal Versus Imputed Disqualification

A lawyer who likely will be a necessary witness in a trial in which she is serving as an advocate, and who cannot find refuge in any of the Rule 3.7(a) exceptions, will be disqualified from representing the client at trial. There may, however, be other lawyers in the same firm who are familiar with the matter and can assume the client's representation at trial. The client would probably prefer such substitution because it minimizes the cost of the representation and avoids delays and other inefficiencies caused by the first lawyer's disqualification. But is it ethically permissible for another lawyer in the disqualified lawyer's firm to try the case? Or, is the first lawyer's disqualification on advocate-witness grounds imputed to all other lawyers in her firm as some conflicts of interest might be?

Imputed disqualification generally is not appropriate in lawyer-witness cases.¹⁶⁰ This is clear from the language of Rule 3.7(b),¹⁶¹ which states: "A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so under Rule 1.7 or Rule 1.9."¹⁶² Thus, where lawyer-witnesses who are expected to testify favorably for their clients cannot escape disqualification by way of Rule 3.7(a)(3), any harm attributable to their disqualification can be lessened by allowing another lawyer in their firms to take over the case.¹⁶³ Opposing parties cannot be heard to complain because there is no danger that the lawyer-witness will argue her own credibility to the jury, or that she will enhance her effectiveness as an advocate by taking the oath as a witness. Although a jury may be skeptical of a lawyer's testimony in a case tried by a lawyer from the same firm, that is an insufficient ground for disqualifying the entire firm.¹⁶⁴

But as Model Rule 3.7(b) further expresses, imputed disqualification is appropriate where the lawyer-witness is also disqualified from representing the client by a conflict of interest under Model Rules 1.7 or 1.9.¹⁶⁵ Under Model Rule 1.10(a), lawyers practicing in a firm generally are disqualified from representing a client "when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9."¹⁶⁶ Thus, "if the conflict rules alone would preclude the testifying lawyer from acting as both advocate and witness, then no one in the testifying lawyer's firm may serve as an advocate in the case."¹⁶⁷

This aspect of Rule 3.7(b) is only implicated where the nature of the lawyer-witness's involvement creates a conflict of interest for other lawyers in the firm.¹⁶⁸ It is intended, for example, to protect a client where its current or former lawyer is expected to testify adversely to it at trial, most often where the opponent calls the lawyer as an involuntary witness. As the North Dakota Supreme Court once explained, a conflict contemplated by Rule 3.7(b) arises "when an attorney's testimony would prejudicially contradict or undermine his client's factual assertions."¹⁶⁹

That is not the only situation in which Rule 3.7(b) comes into play, however. Consider a case in which a partner in a law firm, Black, represented a client in the purchase of heavy equipment. Black drafted the key sales documents. A year later, the...