What is the Lawyer Witness Rule?
The lawyer-witness rule provides that lawyers are not allowed to advocate for their clients in cases in which they intend to be witnesses. The rationale is that a lawyer cannot fairly and impartially represent and advocate for a client in a case if the lawyer will also be a witness either testifying for the client or against the client. You can think of the lawyer-witness rule as a form of client conflict of interest where the lawyer simultaneously serves both as a witness and an advocate.
For example, New Jersey State Court Rule of Professional Conduct 3.7(a) states that "a lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness" except where (1) the testimony will relate to an uncontested issue, (2) the testimony will relate to the nature and value of legal services rendered in the case, or (3) disqualification of the lawyer would work substantial hardship on the client . Even if one of the exceptions applies, the lawyer must still withdraw if the judge disqualifies the lawyer.
The conflict arises when the interests of the client and the interests of the lawyer are contrary to one another. For example, a lawyer cannot effectively advocate for the client in a manner that favors the interests of the lawyer. Similarly, the lawyer cannot effectively advocate for the client in a manner that contravenes the interests of the lawyer. Put another way, the client cannot meaningfully serve conflicting personal interests at trial. Thus, if the lawyer testifies for the client, the lawyer’s client-advocate role will necessarily end.
Where the client and the lawyer each have conflicting interests, an attorney can continue to advocate for the client if the conflict is waived by informed consent. However, if a lawyer’s testimony will necessarily preclude meaningful representation, the conflict cannot be waived.
History of the Lawyer Witness Rule
The roots of the lawyer witness rule can be traced back to the mid-19th century. The earliest reported case in the United States on the subject is the 1868 Pennsylvania decision in Commonwealth v. Dowd. In Dowd, the defendant urged that the testimony of his trial attorney should not be admissible because it would lead to a conflict of interest. However, the court allowed the attorney’s testimony on the grounds that it was "a matter of public interest and public policy that an accused should have a fair and full defence … in every legal and constitutional form, and to permit the state to deny him this would be to allow the state to profit from its own wrong."
Shortly thereafter, the concept of the lawyer witness rule began to spread across the country. In 1890, the Supreme Court of Illinois ruled in People v. Stevens that the lawyer witness rule is part of the duty of a lawyer. The court stated that the ethics rules were "designed to prevent mischief which would result from their violation … [A] violation of the spirit if not the letter, of the rules will [result in] disbarment."
At the same time, the lawyer witness rule did not find universal acceptance in part because there were limited sanctions available, and in part because the states had yet to realize the extent or impact of court-imposed lawyer conduct. In 1963, however, the American Legal Ethics was written by Professor Geoffrey Hazard. In writing this section of the treatise, Hazard conducted an exhaustive investigation into rules, cases and opinions addressing the propriety of lawyers testifying in matters where they are also involved in other key ways. From this, in 1964, the American Bar Association’s Ethics Committee issued its first opinion on the subject, and, in 1967, adopted a rule that would become the basis for many states’ rules on lawyer witness conflicts.
As more jurisdictions began to adopt this or similar versions of the ABA rule, it became clear that there were a number of exceptions to the rule that seemed to defy precedent. These exceptions arose out of the perception that a strict application of the witness prohibition was unfair to both the party and the party’s lawyer. However, in most cases, when the exception was trial by the judges, courts refused to adopt the exception. Nevertheless, in 1983, the ABA adopted Rule 3.7, which carved out certain exceptions to the per se disqualification inherent in the imposition of the lawyer witness rule.
The disciplinary rules were ultimately replaced by the American Bar Association Model Rules of Professional Conduct. Florida’s rule followed closely the Model Rules.
Impact of the Lawyer Witness Rule on Legal Strategy
The lawyer witness rule affects both how the defense and prosecution conduct themselves. The prosecution wants the defense’s lawyer to actually testify at trial. If the prosecution can secure a decision to bar the testimony, thereby keeping the defense lawyer off the stand, then they have an extra layer of confidence that the accused will be automatically found guilty. If the prosecution gets the defense lawyer to testify at a trial, then they can cross-examine and develop impeachment material against the defense attorney.
The prosecution will often try to pressure the defense into calling the lawyer to testify. How does the prosecution do this? They may tell the defense lawyer that if they don’t call the prosecutor to testify, the court will impose sanctions against them, which is something that the lawyer will want to avoid. So they may put on a lot of pressure to have the lawyer testify, but with no real intention of calling them and putting them on the witness stand.
On the other side, the defense wants to keep their attorneys off the stand – without their colleague being painted as a liar, essentially. So the defense will try to get the prosecutor to spend several hours going through documents to identify whether there is any potential impeachment material beforehand using the attorney as a witness. If the defense can get enough information out in the open to make it clear this doesn’t go anywhere, then the defense will be able to keep the prosecutor off the witness stand.
Often, a way to get around having to give up the attorney-client privilege and getting the lawyer on the stand, is to go to the court and ask them to make a ruling on the issue without having the defense attorney testify. The court is going to want to know what the testimony is going to be about, and if the testimony is not going to affect any of the material issues of the case, then the court will make that decision without having to have the lawyer testify. In this situation, the court will be able to read the questions and have an argument over attorney-client privilege without the attorney having to take the stand.
Exceptions to the Lawyer Witness Rule
The lawyer witness rule does not apply if the lawyer is testifying as an expert witness or if the testimony concerns the nature and value of legal services rendered in the case. The reasoning is that expert witnesses are subject to exclusion from other aspects of litigation on the basis that the expert’s testimony may be deemed disruptive to the trial process, making them inappropriate witnesses in their own cases. Lawyers who testify in the alternative as expert witnesses therefore cannot offer their services to a party on the same subject matter upon which they will be testifying. Similarly, if the lawyer is testifying about legal fees and disbursements, it will not be an impediment to the lawyer serving also as trial counsel in respect of other issues.
The disqualification rule for lawyers who are also witnesses does not apply when an attorney is called to testify on behalf of his or her client regarding a matter where only the attorney has the information relevant to the matter, or if the testimony pertains to a legal service that has been rendered in the proffering of which the attorney is not involved. The disqualifying line is drawn between matters on which the lawyer will offer more than mere testimony and testimony that merely relates to an area of inquiry where the lawyer will offer little more than the merely factual nature of a matter. The former testimony is the province of expert witnesses.
In circumstances where lawyers have offered a client testimony on a matter outside the fee dispute pertaining to the legal services rendered, the courts have found that absent exceptional circumstances, competent counsel can be permitted to testify because such testimony is beyond the purview of the disqualification rule. A review of the case law listing the various exceptions to the witness disqualification rule, therefore, demonstrates that the principle being applied is the concept of fair play in excluding damaging evidence from presentation which would have otherwise been pertinent. Disqualification is not absolute. The existence of exceptional circumstances will override the rule of disqualification of an attorney as a witness. Thus the court, in determining whether to admit testimony from a lawyer-witness, will consider whether or not there are exceptional circumstances making disqualification inequitable or unjust.
Whether these exceptions will apply in any given circumstance will depend on the nature of the legal services provided by the lawyer and the nature of the testimony to be given. If the testimony to be offered by the lawyer will be devoid of disputable issues, then the testimony is purely factual and will fall in line with the exceptions to the witness disqualification rule.
Controversies over the Lawyer Witness Rule
The lawyer-witness rule remains one of the more controversial ethical canons with legal scholars and practitioners divided over the rule’s efficacy and its application. The rule has been criticized on the grounds that it is often not well-understood by attorneys who, as a result, may be unaccustomed to applying it regularly. In addition, a 2001 article published in Law and Psychology Review noted that the rule is virtually obsolete in many jurisdictions and expressed concern that, if not uniformly applied and understood, the rule may be interpreted to mean what it should not. Similarly, another article published in the Nova Law Review in 2012 asserted that the rule is rife with troublesome ambiguities.
To further complicate matters, some states have adopted rules that depart from the lawyer-witness rule as it was originally formulated. For example , the District of Columbia Ethics Rules allow a former or current attorney to be an advocate as well as a witness so long as the attorney withdraws from the matter (except for the lawyer’s testimony). The New York Ethics Rules similarly require withdrawal but do not refer to any "exceptional circumstances" rendering withdrawal impossible. The Committee on Professional Ethics for the Association of the Bar of the City of New York advocates the permitting of lawyers and their firms from serving as advocates or witnesses, regardless of whether withdrawal would be permitted.
Some courts have refused to impose automatic disqualification without first conducting a hearing to determine whether the "prosecutorial decision" exception applies. Some courts will not impose disqualification on the grounds that a conflict has not been adequately demonstrated where there is only testimony of the affiant and no supporting evidence. Other courts have declined to disqualify counsel simply because his testimony is deemed to be critical to the case.
Implications for Lawyers and Clients
There are practical implications that flow from the lawyer witness rule. Clients should be aware of the potential need to obtain new counsel at or before trial.
Within the constraints of the rule, lawyers can prepare a case for trial in the same way as any other case. That is, the lawyer will prepare a statement of claim and commence action, serve a statement of defence and reply, obtain full discovery of documents, attend an examination for discovery, review the documents and evidence, and obtain instructions from their client throughout that process.
If the lawyer prepares the case fully for trial and then discovers that he or she could be a witness, they may have to change course dramatically. For example, if a witness statement is required from the lawyer in order to prove up a central fact at trial, then the lawyer must recuse him or herself from acting further for that client. The client will then have to find a new lawyer (ideally not another lawyer from the same firm) and convey the case materials to that lawyer, who may be unwilling to participate in the trial because of the amount of preparation already undertaken by the first lawyer. The new lawyer will be put to expense to read up on the entire case and prepare for trial on short notice. A hearing will be needed to deal with the lawyer’s conduct if and when the lawyer obtained privileged information during the course of his or her retainer; otherwise the privileges may be waived.
A good strategy for progressing cases where there is a risk the lawyer may become a central witness is to bring on an early application to shorten the claim, assume the other witnesses will be available to adduce evidence on critical facts and schedule the trial date on that basis. If necessary, the lawyer could then add party witnesses if it was not possible to do so in the first instance. In preparing the case on the basis that the lawyer will not be a witness, the lawyer would ensure that necessary information regarding that central fact is adduced early in the preparation process. If the lawyer does wish to be actively involved in the case, he or she can simply give up the right to call evidence as a witness at trial and give evidence in the form of a witness statement.
Lawyers who have improperly acted in a matter such that they may be a witness at trial must seek leave of the Judge to continue acting. Clients may wonder why the firm continues to act after it has run into problems of this sort. That is probably a subject for a different article.
Practical Examples
Real-world cases highlight the importance of being aware of the lawyer witness rule and complying with the technical requirements of it.
The first case is Ahn v. Wallace Inc. where the jury verdict awarding $1.5 million to the plaintiff was reversed on appeal as the plaintiff’s counsel testified to matters in violation of the lawyer witness rule. There, in closing argument, the plaintiff’s attorney argued that, given the evidence in the case, the defense should have produced evidence in support of its theory that the accident happened as a result of an "airbag malfunction." The defendant, Wallace, presented surveillance footage showing Ahn sitting in the defendant’s vehicle with the airbag deployed and Ahn suffering no visible injury. The plaintiff’s attorney responded that the defendant "didn’t have to go and get the car for [the defendant, Wallace] himself to go check the brake lines." When the attorney said this , he was addressing the only employee of the defendant present at trial. The defendant’s attorney objected and moved for a mistrial, arguing that, after having heard the plaintiff’s argument, the plaintiff’s attorney was now disqualified to address the jury. The revocation of the plaintiff’s attorney’s opportunity to address the jury was fatal to the plaintiff’s case as no response could be made to the surveillance evidence.
The other case is Young v. Riegler where the Court of Appeal of California reversed a judgment awarding plaintiff $4 million in damages and directed the trial court to grant the defendant’s motion to disqualify the plaintiff’s attorney based on a violation of the lawyer witness rule. There the plaintiff’s attorney was a percipient witness to an accident in which plaintiff suffered catastrophic injuries. The Court of Appeal held that, based on the circumstances of the witness’ knowledge regarding the subject matter, the trial court erred by refusing to remove the attorney as plaintiff’s counsel.
