|Oregon State Bar Bulletin OCTOBER 2007|
Preserving the Distinction Between Advocacy and Evidence
By Helen Hierschbiel
The lawyer-witness rule generally prohibits a lawyer from being both an advocate and a witness at the same trial. The rationale often cited for the rule is that the integrity of the adversarial system is compromised when a player moves between roles.
This venerable rule is a necessary corollary to the more fundamental tenet of our adversarial system that juries are to ground their decisions on the facts of a case and not on the integrity or credibility of the advocates. Accordingly, adherence to this time-honored rule is more than just an ethical obligation of individual counsel; enforcement of the rule is a matter of institutional concern implicating the basic foundations of our system of justice.
U.S. v. Prantil, 764 F2d 548, 553 (9th Cir 1985). Comment 2 to the ABA Model Rule 3.7 further explains,
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.
Preserving the distinction between advocacy and evidence not only prevents confusion of the fact finder, but it ensures fairness to the opposing party and avoids conflicts of interest between the lawyer and client. Obviously, if the lawyer’s testimony is adverse or equivocal to the client’s claims, the client’s case may be damaged; but even where the lawyer’s testimony should be helpful, the lawyer may find himself torn between the duty to zealously advocate for the client and the duty to testify candidly. Other practical reasons may exist for avoiding the dual role as lawyer-witness. For example, testifying could result in waiver of work-product or lawyer-client privilege regarding subjects related to the testimony. See McMorrow, Symposium: The Advocate as Witness: Understanding Context, Culture and Client, 70 Fordham L Rev 945, 962 (2001).
Testimony on Behalf
of the Client
Oregon RPC 3.7(a) relates to testimony that is on behalf of the client. Prior to 1986, Oregon’s lawyer-as-advocate rule (former DR 5-102) followed the ABA Model Code formula, which prohibited representation when it was obvious that the lawyer "ought to be called" as a witness on behalf of the client. See In re Kinsey, 294 Or 544, 565 (1983), citing DR 5-102(A). In 1986, Oregon amended former DR 5-102, abandoning the "ought to be called" standard and adopting language which was carried over into RPC 3.7(a). The rule now prohibits a lawyer from acting as an advocate at a trial when the lawyer is "likely" to be a witness on behalf of the client. By contrast, ABA Model RPC 3.7(a) applies only when the lawyer is likely to be a "necessary" witness. Jurisdictions outside of Oregon generally have held that a lawyer is a "necessary" witness when there is a showing that the lawyer’s testimony would be relevant, material and unobtainable elsewhere. See Sec. Gen. Life Ins. Co. v. Superior Court, 149 Ariz 332, 335, 718 P2d 985 (1986). See also U.S. v. Prantil, supra. (Criminal defendant had compelling need to call prosecutor as material witness because prosecutor was involved in the events at issue). Oregon has no case law interpreting when a lawyer is "likely" to be a witness, but by analogy to the Model Rules, whether a lawyer will likely be a witness would seem to depend at least on whether the lawyer has personal knowledge of facts that are relevant and material to the client’s case.
Because the purpose of the rule is to protect opposing parties and the integrity of the judicial system, a client cannot prevent disqualification of his lawyer by foregoing the lawyer’s testimony. ABA/BNA Lawyers’ Manual on Professional Conduct 61:505 (1995). However, by its terms, RPC 3.7(a) does not prevent a lawyer from assisting in pretrial matters. OSB Formal Ethics Op No 2005-8. See also ABA Informal Ethics Op No 89-1529 (1989)(lawyer who expects to testify on behalf of client at trial may continue to represent client in pretrial proceedings, provided client consents after consultation and lawyer reasonably believes representation will not be adversely affected by the client’s interest in expected testimony).
There are exceptions to the general rule set out in RPC 3.7(a). When testimony relates to an uncontested issue or the nature and value of legal services rendered, or when the lawyer appears pro se, the rule does not apply. See RPC 3.7(a)(1), (2) and (3). RPC 3.7(a)(3) allows a lawyer to act as an advocate and witness when disqualification "would work a substantial hardship on the client." This exception has been narrowly construed in Oregon. In In re Lathen, 294 Or 157, 165 (1982), the court conceded that the accused lawyer was regarded as "one of the best trial counsel for defense of DUII cases" in the area and that his withdrawal would in fact be a hardship on the client given her emotional makeup and the effect on her of having to endure an additional delay in the criminal proceedings of six months. Nevertheless, the court refused to apply the substantial hardship exception because Oregon’s lawyer-witness rule at the time specifically required the substantial hardship to be "because of the distinctive value of the lawyer or his firm as counsel in the particular case." Id.
Because Oregon has abandoned the language from the Model Code that required the lawyer to be of distinctive value in the particular case, the hardship exception may be more liberally interpreted in the future. Referring to the substantial hardship exception, the ABA Model RPC 3.7 Comment  explains that
…balancing is required between the interests of the client and those of the tribunal and the opposing party. Whether the tribunal is likely to be misled or the opposing party is likely to suffer prejudice depends on
the nature of the case, the importance and probable tenor of the lawyer’s testimony, and the probability that the lawyer’s testimony will conflict with that of other witnesses. Even if there is risk of such prejudice, in determining whether the lawyer should be disqualified, due regard must be given to the effect of disqualification on the lawyer’s client. It is relevant that one or both parties could reasonably foresee that the lawyer would probably be a witness.
Finally, the lawyer-witness rule does not impute disqualification on other members of the lawyer’s firm. RPC 3.7(b). Thus, even though the lawyer-witness may not act as the client’s trial advocate, another lawyer in the firm may.
By contrast, RPC 3.7(c) does disqualify the entire firm when the testimony of a lawyer in the firm is against the interests of the firm’s client. In order to prevent abuse as a litigation tactic to force withdrawal of the opposing counsel, the rule only requires withdrawal when "it is apparent that the lawyer’s or firm member’s testimony is or may be prejudicial to the lawyer’s client." In re Kluge, 335 Or 326, 337 (2003). In Kluge, the accused lawyer represented a company for which he was also the general manager and direct supervisor of an employee who, after being fired, filed an employment discrimination lawsuit against the company. The employee alleged acts of wrongdoing by Kluge, which Kluge maintained were authorized by the company. Nonetheless, Kluge continued to represent the company in the lawsuit until he was disqualified by the court. In holding that the lawyer had violated the lawyer-witness rule, the court determined that it is apparent that the lawyer’s testimony might be prejudicial when "a reasonable person would have recognized that fact without difficulty." Id. at 338.
Limited exceptions exist to the prohibition against serving as an advocate and witness in the same case. Handling pre-trial matters is generally permissible, and other firm counsel may handle a trial if the lawyer’s testimony will be on behalf of the client. Keeping the policy of the rule in mind should help a lawyer determine whether an exception applies. In any event, as soon as it becomes apparent that the lawyer’s testimony would or may be prejudicial to the client, the lawyer and her firm must withdraw.
ABOUT THE AUTHOR
Helen Hierschbiel is deputy general counsel for the Oregon State Bar. She can be reached at (503) 620-0222, or toll-free in Oregon at (800) 452-8260, ext. 361, or by e-mail at firstname.lastname@example.org.
© 2007 Helen Hierschbiel