May 7, 1996
It is not per se unethical for a lawyer to act as an advocate in an arbitration proceeding when the lawyer is a necessary witness to testify about a contested fact. A lawyer should be guided by ethics rules applying to lawyers acting as witness at trial.
References: MRPC 3.4(e), 3.7(a), 3.9, 8.4(c); RI-226; CI-1118; ABA Op 89-1529, ABA Op 83-1503, ABA Op i1446; United States v Johnson, 690 F2d 638 (CA7 1982); Culebras Enterprises Corp v Rivera-Rios, 846 F2d 94 (CA1 1988).
The Committee has been asked whether a lawyer may be an advocate in an arbitration proceeding in which the lawyer is a material witness concerning a contested fact.
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; and
"(3) disqualification of the lawyer would work a substantial hardship on the client."
As its text clearly states, MRPC 3.7(a) addresses when a lawyer may not act as an advocate at trial. It does not on its face address the alternative dispute resolution situation. The Comment states:
"Combining the roles of advocate and witness can prejudice the opposing party and can involve a conflict of interest between the lawyer and client.
"The opposing party may properly object where the combination of roles may prejudice that party's rights in the litigation. A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof.
". . .
"Whether the combination of roles involves an improper conflict of interest with respect to the client is determined by Rule 1.7 or 1.9. For example, if there is likely to be substantial conflict between the testimony of the client and that of the lawyer or a member of the lawyer's firm, the representation is improper. The problem can arise when the lawyer is called as a witness on behalf of the client or is called by the opposing party. Determining whether or not such a conflict exists is primarily the responsibility of the lawyer involved. See comment to Rule 1.7. If a lawyer who is a member of a firm may not act as both advocate and witness by reason of a conflict of interest, Rule 1.10 disqualifies the firm also."
The concerns cited in the Comment are present in the arbitration proceeding as well as in the courtroom. The principle is not so much where the conduct occurs, as it is the tension between advocating for a particular party and presenting testimony. As stated by Hazard and Hodes in The Law of Lawyering, Prentice-Hall, 1995 Supplement, p 680:
"The interest of the opposing party protected by Rule 3.7 is parallel to that protected by Rule 3.4(e), which forbids an advocate from voicing personal opinions about the merits of a cause. Both rules prevent mixing of advocacy and testimony. As to protection of client interests, Rule 3.7 is essentially an application of the conflict of interest principle. If the lawyer (or a member of the lawyer's firm) must give testimony that is either adverse or ambivalent with respect to the client's cause, the case may be damaged. Moreover, even where the lawyer's testimony is helpful to the client, the lawyer may have a difficult time representing his client zealously while simultaneously trying to protect his own reputation as a truthful witness."
There is ample authority that the prohibition in MRPC 3.7 is not to be applied to pretrial matters, e.g., ABA Op 89-1529, United States v Johnson, 690 F2d 638 (CA7 1982), Culebras Enterprises Corp v Rivera-Rios, 846 F2d 94 (CA1 1988); or to appellate matters, ABA Op i1446, ABA Op 83-1503. MRPC 3.9 states:
"A lawyer representing a client before a legislative or administrative tribunal in a nonadjudicative proceeding shall disclose that the appearance is in a representative capacity and shall conform to the provisions of Rules 3.3(a) through (c), 3.4(a) through (c), and 3.5."
The advocate in the nonadjudicative forum is not bound by MRPC 3.7.
On the other hand, MRPC 3.7 has been applied in administrative proceedings where an adjudication is made. MRPC 3.4, referenced by Hazard and Hodes, is not limited to the courtroom setting. In CI-1118 we noted that an "advocate" was "a person who presents evidence and argument or otherwise participates as a spokesperson for the client in open court." This interpretation was affirmed in RI-226. The interrelation of the activity and the dual roles of the lawyer is as important as the forum.
We believe the principles underlying MRPC 3.7 are equally applicable when a lawyer serves as advocate in an arbitration proceeding and also as a witness in that same proceeding. An arbitration proceeding adjudicates the merits of the claims to the same extent that they are resolved in a courtroom setting. If MRPC 3.7 on its face does not directly apply to the arbitration setting, then MRPC 8.4(c), prohibiting a lawyer from engaging in conduct prejudicial to the administration of justice, would still require a balancing of those interests. In performing such a balance, MRPC 3.7 should be used as a guide.