Ethics Opinion 228

Lawyer-Witness Participation in Pre-Trial Proceedings

Although precluded from acting as trial counsel, a lawyer who is likely to be a necessary witness at trial ethically may assist substitute counsel in both pre-trial matters and trial preparation and may continue him/herself to represent the party in most pre-trial proceedings.

Applicable Rules

• Rule 3.7(a) (Lawyer As Witness)
• Rule 1.7(b) (Conflict of Interest)
• Rule 1.4(b) (Communication)

Inquiry

The inquirer has represented a client (the association) for several years. The association currently is involved in litigation in which opposing counsel successfully sought inquirer's disqualification from representation based on the opposition's intention to call inquirer as a witness. The association retained substitute trial counsel whom inquirer has assisted in preparing for trial.¹

Opposing counsel objects to the assistance that inquirer has been providing to substitute counsel. Opposing counsel contends that this assistance violates Rule 3.7(a). Inquirer believes the court's disqualification of him as trial counsel does not affect his ability to assist his client in preparation for trial; he is limited only in his ability to represent the association at trial.

Discussion

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. . . ." As Comment [2] explains, the advocate-witness rule is intended to prevent prejudice that could result from the lawyer's assumption of dual roles at trial: "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 an analysis of the proof."

Beyond the confusion that this combination of roles might create, the rule is justified on at least three other bases: (1) it is necessary to prevent the possibility that, in addressing the jury, the lawyer will appear to vouch for his own credibility; (2) it will prevent the difficult situation that occurs when an opposing counsel must cross-examine a lawyer-adversary and seek to impeach his credibility; and (3) the rule also will prevent the implication that the testifying lawyer is distorting the truth for his/her client's benefit. Culebras Enterprises Corp. v. Rivera-Rios, 846 F.2d 94, 99 (1st Cir. 1988), citing Bottaro v. Hatton Associates, 680 F.2d 895, 897 (2d Cir. 1982); International Electronics v. Flanzer, 527 F.2d 1288, 1294 (2d Cir. 1975); MacArthur v. Bank of New York, 524 F. Supp. 1205, 1208 (S.D.N.Y. 1981). See also A.B.A., Annotated Model Rules of Professional Conduct, at 387-89 (2d ed. 1992).

All of the reasons underlying the rule relate to concerns that might arise only at trial. Indeed, Rule 3.7(a)'s reach is limited to the trial stage, i.e., the lawyer is prohibited from acting only as "advocate at a trial" when he or she is likely to be a necessary witness. Given the Rule's express limitation and the trial-stage purposes it is intended to serve, we conclude that a lawyer who is likely to be a necessary witness at trial may represent a client in most pre-trial matters. This includes, but is not limited to, taking witness depositions, pre-trial discovery and argument of most pre-trial motions, and also assisting in trial preparation.² It follows a fortiori that the lawyer-witness may assist substitute counsel in similar matters.

The American Bar Association Committee on Ethics and Professional Responsibility considered the same issue in Informal Opinion 89-1529 (10/20/89). In reaching the same conclusion under substantially the same rule,³  the ABA committee found several reasons for permitting the lawyer-witness to represent the client advocate during the pre-trial stage: (1) the case may be settled in advance of trial so that the lawyer is not needed to testify; (2) the lawyer's testimony may be replaced with other evidence at trial; (3) the client may choose to forego the lawyer's testimony rather than lose the lawyer's services at trial; (4) there is little likelihood of prejudice to the client or the justice system since the Rules now permit the lawyer's partner to act as trial counsel; and (5) the lawyer-witness may have the most knowledge about the case, and it would be unfair to the client not to permit that lawyer to participate in pre-trial proceedings.

We agree, and add that the Rules should not be interpreted to interfere unnecessarily with a client's choice of counsel. Where none of the Rule 3.7's purposes are served by pre-trial disqualification, such a disqualification of the advocate-witness would serve only to deprive the client of the lawyer or firm which not only knows the case best but with whom the client most likely has an established relationship. See Norell, Inc. v. Federated Department Stores, Inc., 450 F. Supp. 127, 130 (S.D.N.Y. 1978).

Courts considering the issue of advocate-witness participation in pre-trial matters generally have permitted such participation. In Culebras Enterprises, supra at 99, the First Circuit squarely was asked and squarely refused to construe Rule 3.7 broadly: "The question is whether the prohibition against acting as 'advocate at a trial' should be read as broadly prohibiting the rendition of case-related out-of-court services prior to trial. We think not."

Even under the former and arguably broader rule, DR 5-102(B), Courts permitted advocate-witnesses⁴  to participate in pre-trial proceedings though disqualified or likely to be disqualified from representation at trial. See Moyer v. 1330 Nineteenth Street Corp., 597 F. Supp. 14, 17 (D.D.C. 1984); Brotherhood Railway Carmen v. Delpro Co., 549 F. Supp. 780, 790 (D. Del. 1982); MacArthur v. Bank of New York, supra at 1211 ("The disqualified firm may consult with defendant's substitute counsel and assist in preparing for trial."); Norell, Inc., supra. But see Munk v. Goldane National Corp., 697 F. Supp. 784, 788 (S.D.N.Y. 1988) (interests of justice best served if advocate-witness disqualified from pre-trial proceedings); General Mill Supply Co. v. SCA Services, 697 F.2d 704, 716 (6th Cir. 1982) ("The most acute evils we would foresee from failure to enforce [DR 5-102] in this instance would occur in the pretrial period. . . .")

Although noting that Rule 3.7 applies "specifically to service 'as advocate at a trial,'" the ABA ethics committee nonetheless believed "the policy behind the prohibition applies to any situation where the lawyer[-witness] is placed in the position of arguing the lawyer's own veracity" in a pre-trial proceeding. Inf. Op. 89-1529, supra note 1. The ABA thus felt that a lawyer should not argue, without the client's consent, a pre-trial motion where the lawyer's testimony is both disputed and material to a contested matter being decided before trial. In a single-sentence footnote, the Court in Brotherhood of Railway Carmen, supra note 20, also precluded the advocate-witness from participating in pre-trial motions that required him to testify to the matter at issue. Neither opinion cited an ethics rule or previous judicial opinion.

While in some instances it may be best for a lawyer-witness to decline representation of a client in a pre-trial motion requiring argument of his/her own testimony, D.C. Rule 3.7(a), by its terms, extends only to prohibit advocacy at a trial. Although it is identical to ABA Model Rule 3.7(a), we decline to extend the D.C. rule beyond its terms. Had the District of Columbia Court of Appeals intended the rule to apply beyond prohibition of courtroom representation, the rule could have been so written⁵  However, in any case in which the lawyer's professional judgment on behalf of a client may be adversely affected by his/her role as a witness, the lawyer may not represent the client in pre-trial motions without the client's consent. Rule 1.7(b)(4). A lawyer-witness should carefully consider whether this is the case when his/her own testimony is at issue in a pre-trial motion.

Another representational issue that is raised concerns the lawyer-witness representing the client at the lawyer's own pre-trial deposition. While Rule 3.7 does not prohibit such representation, other ethical issues may be raised when a lawyer assumes both roles at his/her own deposition. Chief among these issues is whether the lawyer-witness will be able to protect his/her client's confidences and secrets diligently, as required by Rule 1.6. The ABA Committee, in cautioning against this practice, thought the "better practice is that another lawyer serve as counsel to the client at that deposition."

Once it becomes apparent that the lawyer likely will be a necessary witness at trial, it follows from Rule 1.4(b)⁶  that the advocate-witness must inform his/her client of this development and seek the client's informed consent to the continued pre-trial representation. The client should understand the effect that withdrawal prior to trial will have, including the financial impact, if any, of retaining new counsel and the point at which new counsel should be retained. As with any withdrawal from employment, the advocate-witness is bound by the requirements of Rule 1.16(d).

Inquiry No. 91-10-38
Adopted: May 19, 1992

1. The events in this inquiry occurred before the adoption of the Rules of Professional Conduct. Under the former Code of Professional Responsibility, the inquirer’s disqualification under DR 5-102(a) was imputed to his law firm. Rule 3.7 removes this imputed disqualification. Assuming that the applicable court order would permit, the change effected by Rule 3.7 would allow previously-disqualified law firms to resume representations in which a firm member is a necessary witness.
2. This is subject to any applicable rules of court, including rules regarding witnesses.
3. D.C. and Model Rule 3.7(a) are identical; subsection (b) of each rule is substantially the same.
4. DR-5-102(A) provided that a lawyer “shall withdraw from the conduct of the trial” if the lawyer learns or it is obvious that the lawyer ought to be called as a witness; the lawyer’s firm “shall not continue representation in the trial.”
5. For example, in Rule 3.4 (Fairness to Opposing Party and Counsel), subsections (d) and (e) clearly distinguish between pretrial and trial obligations.
6. Rule 1.4(b) states: “A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”