February 7, 1995
A lawyer who is going to be a necessary witness concerning a contested fact may not serve as the advocate at trial, i.e., as the person who presents evidence and argument or otherwise participates as a spokesperson for the client in open court.
A lawyer who is going to be a necessary witness concerning a contested fact is not thereby prohibited from taking the case, from negotiating with parties, or from performing trial preparation.
References: MRPC 3.7(a); RI-26, RI-57; CI-1118; ABA Op 89-1529.
A lawyer heard an explosion and was alerted that an auto accident had occurred. The lawyer walked from his office to a vantage point 75 feet away to view the crash aftermath, and photographed the site among the emergency vehicles. Subsequently the lawyer was contacted by one of the injured persons for representation. The lawyer believes there will be no contest that the crash occurred, that it was a "rearender" collision, that the prospective client's vehicle was the first hit, and that other people took photographs of the scene. The lawyer asks whether, since the lawyer is a possible witness, it is ethical to take the case.
MRPC 3.7(a) states:
"(a) 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 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."
The philosophy underpinning this rule is stated in Annotated Model Rules of Professional Conduct, American Bar Association, p 387 as follows:
"The rule that a lawyer should not combine the roles of witness and advocate is designed to avoid public perception that the lawyer as witness is distorting truth for the sake of a client or enhancing his or her own credibility as an advocate by taking an oath as a witness, and to spare opposing counsel the unfair and difficult task of cross-examining an adversary and impeaching the adversary's credibility."
On its face, MRPC 3.7(a) does not disqualify the lawyer from the case. The rule only prohibits the lawyer from performing as advocate at trial, i.e., one portion of the expected representation. The lawyer is not prohibited from taking the case, from negotiating with parties, or from performing trial preparation. ABA Op 89-1529. In CI-1118, we concluded that a lawyer/accountant 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. Although that opinion was decided under former Michigan Code of Professional Responsibility DR 5-101(B), the opinion noted ABA Model Rule of Professional Conduct 3.7 (identical to MRPC 3.7) in reaching its decision. "Advocate," for purposes of the Rule, was defined as "a person who presents evidence and argument or otherwise participates as a spokesperson for the client in open court."
The facts do not indicate or reveal whether the inquirer intends to testify voluntarily on behalf of the client or whether the inquirer expects to be named as a witness by other counsel. The mere possibility that the lawyer will be a witness is not sufficient to trigger the rule. Further, the facts indicate that the inquirer is not the only witness of the scene, and not the only one who took photographs.
Whether the lawyer is disqualified from the case entirely is determined under MRPC 1.7, 1.8, 1.9, 1.10 or 1.11. For instance, if the lawyer's testimony would be inconsistent with the interests of the prospective client, MRPC 1.7(b) would require disqualification. See, RI-26, a lawyer may not be an advocate at trial in which the lawyer's employee will testify inconsistently with the interests of the lawyer's client; RI-87, a lawyer/witness's firm is not disqualified under MRPC 1.9 when the testimony of the lawyer is adverse to the interests of a former client but the matters are not substantially related.