October 7, 1985
A lawyer/CPA serving as counsel in a divorce case need not withdraw as counsel in order to serve as an expert witness on behalf of the client, where co-counsel, a trial lawyer who is not in any way affiliated with the counsel's law firm, will serve as sole advocate in open court.
References: MCPR DR 5-101(B); ABA Model Rule of Professional Conduct 3.7; Smith v Arc-Mation Inc, 402 Mich 115 (1978).
A lawyer/certified public accountant ["lawyer/CPA"] was retained as co-counsel by a party in a divorce case to assist trial counsel in determining the value of the marital estate, which included a restaurant business controlled by the client's spouse. After extensive review and evaluation of business records, the lawyer/CPA reached certain conclusions regarding values of assets. Approximately four months prior to scheduled trial, the lawyer/CPA determined that the client would be better served by the lawyer/CPA being an expert witness. Two months prior to scheduled trial the original trial counsel withdrew and a substitute was obtained. Trial counsel is not affiliated with the law firm of the lawyer/CPA. The lawyer/CPA wishes to testify at trial as an expert witness and to also continue as co-counsel to serve in an advisory and counseling capacity during the trial. The lawyer/CPA will not conduct any portion of the trial proceedings.
MCPR DR 5-101(B) states in relevant part:
"A lawyer shall not accept employment in contemplated or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as witness, except that he may undertake the employment and he or his firm may testify:
". . .
"(4) As to any matter, if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in a particular case."
MCPR DR 5-102 provides for withdrawal as counsel, subject to the same exceptions as in DR 5-101, when a lawyer learns of the lawyer's role as witness after accepting employment. ABA Model Rule of Professional Conduct 3.7 states in relevant part:
"(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:
Model Rule 3.7 is more flexible than DR 5-101(B) in two respects: (1) it limits the prohibition to a situation where the lawyer acts as advocate, and (2) it does not confine the definition of "substantial hardship" to those situations where the lawyer has "distinctive value" in a particular case.
The rule prohibiting a dual role at trial is one of long standing, originating in the law of evidence as a corollary to the archaic principal that neither a party nor one aligned in interest with a party is competent as a witness on the party's behalf. See 6 Wigmore, Evidence 597 (Chadbourn rev. ed. 1976). While modern courts have rejected the evidentiary rule, four principal justifications (some more persuasive than others) have been advanced in support of the continued prohibition. See generally, ABA/BNA Lawyer's Manual on Professional Conduct (1984), 61:503-506:
- A lawyer should not act as both advocate and witness because the dual role may be detrimental to the client's interests in that the lawyer may be more impeachable on grounds of interest or bias;
- The prohibition is necessary to avoid the appearance of impropriety because the public will suspect the advocate of distorting the truth to further his client's interests;
- A lawyer's appearance in the dual roles prejudices the opposing party by inhibiting cross-examination of a lawyer-witness;
- The advocate-witness rule protects the integrity of the advocate's role as in independent and objective proponent of rational argument and preserves the distinction between advocacy and testimony.
In Smith v Arc-Mation Inc, 402 Mich 115 (1978), the Michigan Supreme Court favorably cited the opinion of the Utah Supreme Court in Galarowicz v Ward, 119 Utah 611, 230 P2d 576 (1976):
"Apparently the object of [DR 5-102(B)] is to avoid putting a lawyer into the obviously embarrassing predicament of testifying and then having to argue the credibility and effect of his own testimony."
We believe that the preservation of the distinction between advocacy and testimony at trial is the strongest justification for the advocate-witness rule.
Although the term "advocate" is not incorporated within DR 5-101(B) as it is in Model Rule 3.7, the justifications advanced to support DR 5-101(B) are all grounded upon a perceived conflict between the role of advocate and witness. While "advocate" can be defined more broadly, in the context of the advocate-witness rule it is best defined as a person who presents evidence and argument or otherwise participates as a spokesperson for the client in open court.
A lawyer need not terminate representation of client under the facts presented here. Because the lawyer/CPA will only assist and will not serve as a spokesperson for the client at trial, the lawyer/CPA is not deemed an advocate. Because trial counsel is not affiliated with the firm of the requesting lawyer in any manner, the testimony of the lawyer/CPA and the advocacy of trial counsel are sufficiently distinct as to avoid any confusion between the functions.
We do not reach the question of whether the withdrawal of the lawyer/CPA under these circumstances would work a "substantial hardship" upon the client. See CI-943 for a comprehensive discussion of this issue.