Lawyer as Witness
LACBA Update, October 2012
By Michael H. Strub Jr., Counsel with Irell & Manella LLP in Newport Beach and a member of the LACBA Professional Responsibility and Ethics Committee. His practice focuses on complex business litigation, with a focus on insolvency issues and intellectual property. He also is a specialist on the attorney-client privilege. He can be reached at firstname.lastname@example.org. The opinions expressed are his own.
You are a California lawyer, and you represent a plaintiff in a breach of contract suit. You also have personal knowledge relevant to the dispute, as you overheard the defendant make a statement that supports your client’s position. Can you continue the representation, consistent with your ethical obligations? Can your adversary disqualify you? Would the analysis be different if you learn through discovery that your law partner overheard the defendant’s statement? The answers to these questions will be different depending on the nature of the case and the jurisdiction in which it is pending. In California, the answers are far from clear.
In California, Rule of Professional Conduct 5-210 governs the obligations of a member of the bar who may also be called upon to act as a witness. The rule provides that:
A member shall not act as an advocate before a jury which will hear testimony from the member unless:
(A) The testimony relates to an uncontested matter; or
(B) The testimony relates to the nature and value of legal services rendered in the case; or
(C) The member has the informed, written consent of the client. If the member represents the People or a governmental entity, the consent shall be obtained from the head of the office or a designee of the head of the office by which the member is employed and shall be consistent with principles of recusal.
As the text of the rule indicates, it is intended to apply only if the member knows or should know that he or she will be a witness in a jury trial. It does not apply to bench trials or legislative proceedings. The conflict can be waived by the informed, written consent of the client. And it “is not intended to apply to circumstances in which a lawyer in an advocate’s firm will be a witness.”1
So if the lawsuit is pending in California, the answer is clear, right? Unfortunately, it is not. Rule 1-100(A) provides that “[e]thics opinions and rules and standards promulgated by other jurisdictions and bar associations may also be considered.” Under this mandate, courts in California have applied the much broader, nonwaivable proscription in Model Rule 3.7.2 Model Rule 3.7 provides that:
(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates 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.
(b) 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 by Rule 1.7 or Rule 1.9.3
In Kennedy v. Eldridge, the court of appeal applied Model Rule 3.7, rather than Rule 5-210, to affirm disqualification of a child’s grandfather from representing the father in a custody and support dispute with the child’s mother.4 The court affirmed disqualification even though the dispute would be resolved by a judge, not a jury, and the grandfather presumably had the informed, written consent of his grandson. Although the facts in Kennedy involved multiple potential conflicts, the decision provides precedent for an adversary who was never a member’s client to disqualify a member where he or she would be expressly permitted to continue the representation under Rule 5-210.
The ambiguity in the potential application of the rules governing a member as a witness is driven by the potential circumstances giving rise to the conflict but also by competing views of the policy behind the rule. One view of the rule is that it serves primarily to protect the interests of the client. A lawyer who acts as both an attorney and witness may diminish his or her potential effectiveness in both capacities. But, like other conflicts, this conflict can be waived by informed consent.
Another view of the rule is that it protects the judicial process and the administration of justice. “Permitting a lawyer to be both advocate and witness based only on the consent of a client who could likely be benefitted by any confusion caused by the lawyer’s dual role poses a threat to the fair administration of justice.”5 The disparity between these two positions is illustrated in the debate within the Commission for the Revision of the Rules of Professional Conduct over whether California should adopt the broader language of Model Rule 3.7. The majority of the Commission rejected such a change believing that the current version “protects the client’s autonomy by ensuring the client is fully informed,” while the minority would have adopted such a change to “protect and ensur[e] the integrity of the judicial process.”6
Another illustration of this policy debate behind the lawyer-as-witness rule is the curious life after death of the California Supreme Court’s decision in Comden v. Superior Court.7 In that case, the court held that a lawyer who called another member of his firm to provide testimony could be disqualified based on the “preservation of public trust both in the scrupulous administration of justice and the integrity of the Bar.”8 The decision was superseded by the amendment to Rule 5-210,9 yet it continues to be cited in most pro-recusal opinions.10
The practical lesson flowing from the murky waters of the “lawyer-as-witness” rule is to approach such a conflict with care and thoroughness. Consider what law will apply. For example, many jurisdictions may still disqualify an attorney because a member of his or her firm may be a witness.11 Other jurisdictions applying the broader principles of Rule 3.7 may nevertheless permit a lawyer to represent a client at the pretrial stage.12 Different jurisdictions also may have different rules on standing. “[F]ederal courts generally limit standing to bring disqualification motions to clients or former clients,” while state courts may not have this limitation.13 Finally, a lawyer confronting this situation—whether the witness is the lawyer representing the client or a colleague—should always seek the informed written consent of the client, even if not required by Rule 5-210, to ensure that the client is not surprised and has given consideration to the effect that this may have on the presentation of his or her case.
1 Cal. Rules of Prof'l Conduct R. 5-210 Discussion.
2 Kennedy v. Eldridge, 201 Cal. App. 4th 1197, 1211 (2011); People v. Donaldson, 93 Cal. App. 4th 916, 928 (2001).
3 These rules govern conflicts with current and former clients.
4 Kennedy, 201 Cal. App. 4th at 1211.
5 Proposed Rule 3.7 [5-210], “Lawyer as Witness,” (Draft #7, 12/12/09), pp. 5-6, available at ethics.calbar.ca.gov. The Proposed Rules have been adopted by the Board of Governors but have not been approved by the Supreme Court. See http://www.calbar.ca.gov/portals/0/documents/rules/rrc2014/final_rules/Proposed_Rules_of_Professional_Conduct-CAL_Style_(09-15-17).pdf
6 Id. at 3.
7 Comden v. Superior Court, 20 Cal. 3d 906 (1978).
8 Id. at 915.
9 See Smith, Smith & Kring v. Superior Court, 60 Cal. App. 4th 573 (1997).
10 Eric E. Younger & Donald E. Bradley, Younger on California Motions §8:19 (2011 ed.).
11 David B. Harrison, Disqualification of Attorney Because Member of His Firm Is or Ought to Be Witness in Case—Modern Cases, 5 A.L.R. 4th 574 (1981).
12 DiMartino v. Eighth Judicial District Court, 66 P. 3d 945 (Nev. 2003).
13 Kennedy v. Eldridge, 201 Cal. App. 4th 1197, 1204 (2011).