Public statements and lawyer as witness - Lawyer as witness

Learning Outcomes

After reading this article, you will be able to identify when a lawyer is prohibited from acting as an advocate at trial due to being a necessary witness, explain the exceptions to the advocate-witness rule, distinguish between personal and firm-wide disqualification, and apply these principles to MPRE-style questions.

MPRE Syllabus

For the MPRE, you are required to understand the ethical rules governing a lawyer serving as both advocate and witness in the same proceeding. This article covers:

• Recognizing when a lawyer is likely to be a necessary witness at trial.
• Identifying the exceptions allowing a lawyer to act as advocate and witness.
• Understanding when disqualification applies to the individual lawyer versus the entire firm.
• Applying the advocate-witness rule to common litigation scenarios.
• Distinguishing between personal and imputed conflicts in this context.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Under the Model Rules, when is a lawyer generally prohibited from acting as advocate at a trial?
   1. Whenever the lawyer has personal knowledge of the facts.
   2. When the lawyer is likely to be a necessary witness.
   3. When the lawyer is called as a character witness.
   4. Only in criminal cases.
2. Which of the following is an exception to the advocate-witness rule?
   1. The lawyer’s testimony relates to a contested issue.
   2. The lawyer’s testimony relates to the nature and value of legal services rendered.
   3. The lawyer’s testimony is adverse to the client.
   4. The lawyer’s testimony is required by opposing counsel.
3. If a lawyer is disqualified from acting as advocate because they are a necessary witness, may another lawyer in the same firm act as advocate?
   1. No, the whole firm is always disqualified.
   2. Yes, unless the lawyer-witness’s conflict is also a conflict under the general conflict rules.
   3. Yes, but only with court approval.
   4. No, unless the client waives the conflict.
4. A lawyer’s testimony is needed on an uncontested issue. May the lawyer act as advocate at trial?
   1. Yes, this is an exception.
   2. No, the lawyer must withdraw.
   3. Only if the client consents.
   4. Only if the court orders it.

Introduction

A lawyer may face a conflict when acting as both advocate and witness in the same trial. The Model Rules generally prohibit a lawyer from serving as advocate at a trial where the lawyer is likely to be a necessary witness, but provide specific exceptions. Understanding when this rule applies, and when it does not, is essential for MPRE success.

Key Term: Advocate-Witness Rule
The ethical prohibition against a lawyer acting as advocate at trial when the lawyer is likely to be a necessary witness, subject to limited exceptions.

The Advocate-Witness Rule: General Prohibition

A lawyer is generally barred from acting as advocate at a trial in which the lawyer is likely to be a necessary witness. This is to avoid confusion for the jury, prevent conflicts between the lawyer’s role as advocate and as witness, and protect the integrity of the process.

Key Term: Necessary Witness
A lawyer whose testimony is essential to the determination of a material issue at trial and cannot be obtained from another source.

Exceptions to the Advocate-Witness Rule

There are three main exceptions where a lawyer may act as advocate even if they are a necessary witness:

1. Uncontested Issue: The lawyer’s testimony relates solely to an uncontested issue.
2. Nature and Value of Legal Services: The lawyer’s testimony concerns the nature and value of legal services rendered in the case.
3. Substantial Hardship: Disqualification of the lawyer would work substantial hardship on the client.

Key Term: Substantial Hardship Exception
An exception allowing a lawyer to act as advocate and witness if removing the lawyer would cause significant prejudice or difficulty for the client.

Imputed Disqualification: When Does It Apply?

The advocate-witness rule is generally a personal conflict. Other lawyers in the same firm may act as advocate at trial, even if one lawyer in the firm is likely to be a necessary witness. However, if the lawyer-witness’s conflict is also a conflict under the general conflict rules (such as a conflict of interest with a current or former client), then the disqualification may be imputed to the entire firm.

Key Term: Imputed Disqualification
The extension of one lawyer’s conflict to all lawyers in the same firm, unless the conflict is personal and does not present a significant risk of materially limiting the representation by other lawyers.

Worked Example 1.1

A lawyer represents a client in a contract dispute. The lawyer is the only person who can testify about the circumstances of the contract’s signing, which is a contested issue. May the lawyer act as advocate at trial?

Answer:
No. The lawyer is likely to be a necessary witness on a contested issue. The advocate-witness rule prohibits the lawyer from acting as advocate at trial unless an exception applies, which it does not here.

Worked Example 1.2

A lawyer is called to testify about the reasonableness of her fees in a case where attorney’s fees are at issue. May she act as advocate at trial?

Answer:
Yes. Testimony about the nature and value of legal services rendered is a recognized exception to the advocate-witness rule.

Worked Example 1.3

A lawyer’s testimony is needed on an uncontested procedural matter. The client insists that the lawyer remain as trial counsel. May the lawyer continue?

Answer:
Yes. The rule allows a lawyer to act as advocate if the testimony relates solely to an uncontested issue.

Exam Warning

The advocate-witness rule applies only when the lawyer is likely to be a necessary witness. If the lawyer’s testimony is merely cumulative or could be provided by another witness, the rule does not require withdrawal.

Revision Tip

Always check if the lawyer’s testimony fits one of the three exceptions before concluding that disqualification is required.

Key Point Checklist

This article has covered the following key knowledge points:

• The advocate-witness rule generally prohibits a lawyer from acting as advocate at trial if likely to be a necessary witness.
• Exceptions exist for uncontested issues, testimony on legal services, and substantial hardship to the client.
• The rule is usually a personal conflict and does not automatically disqualify the entire firm.
• Imputed disqualification applies only if the conflict is also a general conflict of interest.
• The rule does not apply if the lawyer’s testimony is not necessary or can be provided by others.

Key Terms and Concepts

• Advocate-Witness Rule
• Necessary Witness
• Substantial Hardship Exception
• Imputed Disqualification