September 11, 1996
A lawyer may undertake representation of a client in a litigation matter in which the lawyer will likely be a necessary witness at trial, where the lawyer's expected testimony does not conflict with the client's interests.
The lawyer may handle pretrial matters even though it is expected that the lawyer will be unable to serve as trial advocate.
Any arrangement which contemplates use of substitute trial counsel if the lawyer is eventually disqualified must be discussed fully with and approved by the client in advance.
References: MRPC 1.7(b), 3.7; RI-226.
A lawyer is retained in a divorce proceeding by a client whom the lawyer has previously represented in connection with the preparation of a post-nuptial agreement executed by the client and the client's spouse (who the lawyer did not represent). In the divorce action, the spouse will seek to have the post-nuptial agreement invalidated or otherwise to avoid the impact of its terms. It is likely that the lawyer will be viewed by at least one of the parties as a necessary witness with respect to that issue. The lawyer has no responsibilities to other clients or third persons and, apart from the prospect of being called as a witness, has no personal interest which would limit representation of the client. The lawyer's knowledge and recollection of events surrounding the making of the post-nuptial agreement are consistent with those of the client and supportive of the client's interest in defending its validity. The lawyer is a member of a law firm which includes other lawyers who could step into the advocate's role if the lawyer is disqualified.
The lawyer asks if representation of the client in the divorce action may be ethically undertaken, and whether the lawyer may serve as the trial advocate. If the lawyer may not serve, may another lawyer in the lawyer's firm represent the client and fill the trial advocate role.
MRPC 3.7 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.
"(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."
Because it is likely that the lawyer will be a necessary witness whose testimony will relate to disputed issues going beyond merely the nature and value of the lawyer's services, and because the facts presented do not suggest that disqualifying the lawyer will create a hardship situation for the client, MRPC 3.7(a) will operate, when the time comes, to preclude the lawyer from acting as the client's trial advocate. But the Rule only disqualifies the lawyer as trial advocate - presenting evidence or argument in open court - and does not reach other aspects of the representation such as preparing the case for trial or negotiating with an opposing party's counsel. RI-226. See also ABA i89-1529. The lawyer may ethically undertake the representation but should plan for the disqualification prospect and take appropriate action.
MRPC 3.7(a) generally protects an opposing party's interest in fairness in litigation by barring an advocate from acting as a witness and also arguing that the advocate's testimony is credible. Like MRPC 3.4(e), which forbids an advocate from voicing personal opinions about the merits of a cause, MRPC 3.7(a) seeks to prevent the mixing of advocacy and testimony. Because MRPC 3.7(a) protects an adversary's interest, it applies most often in situations such as exist here, in which the lawyer's anticipated testimony is in aid of, rather than adverse to, the lawyer's own client's interest.
MRPC 3.7(b) amplifies MRPC 3.7(a) in two ways. First, it ameliorates the harshness of disqualification by making it plain that the disqualification is personal, so that another lawyer from the law firm can step in without facing imputed disqualification. The opposing party's interests are protected if the lawyer is prevented from arguing that the lawyer's own testimony ought to be believed, and making the disqualification purely personal strips the possibility of some of its potential for abuse.
Second, and more importantly here, MRPC 3.7(b) protects the client's interest when it is possible that the lawyer's testimony will be adverse or where the device of using another member of the lawyer's firm as substitute advocate may itself amount to a material limitation upon the lawyer's ability to provide adequate representation. If the lawyer's expected testimony will be adverse to the client, MRPC 1.7(b) would be applicable, and if the lawyer is precluded from trying the case under that Rule, the disability would be imputed to other firm members. See RI-226; Hazard & Hodes, The Law of Lawyering, 1996 Supp, Prentice-Hall, §3.7:301.
But even when the lawyer's testimony is expected to advance the client's interests, the client must be warned in advance that the adversary may move to disqualify the lawyer under MRPC 3.7(a). It is possible that the prospect of such a disqualification on the eve of, or at trial, would be construed as limiting the lawyer's ability to represent the client, i.e., where the lawyer may handle only part of the case and would be forced to bring a firm member in to try the case on the eve of trial. Such a limitation on the representation, if material, would itself trigger MRPC 1.7(b). The client must be counseled, MRPC 1.4(b), and must consent to the planned method for dealing with the potential MRPC 3.7 disqualification issue. See ABA i89-1529.
Therefore, with informed advance client consent, the representation may be undertaken even if the lawyer is likely to be a necessary witness. The lawyer may not ethically conduct the trial as the client's advocate while the likelihood remains but may conduct pretrial work on the client's behalf. A member of the lawyer's firm may be brought in to take over to try the case if the disqualifying circumstances are present when the trial actually gets underway.
The lawyer's duties may be summarized. The lawyer may accept the representation initially. At whatever time (initial conference or later) the lawyer learns that the adversary may be contesting the post-nuptial agreement and concludes that the lawyer may be a witness if the matter actually comes to trial, the lawyer must reevaluate the situation in light of MRPC 3.7 and 1.7. For purposes of the former, the lawyer must decide whether the prospect of testifying is "likely" and whether the lawyer is a "necessary" witness. Those questions might be dependably answered in the affirmative, for example, if the client's own interests cause the lawyer to decide to testify. But a negative conclusion would necessarily be dependent upon the adversary's position, as well as that of the trial judge, and so would have to be considered tentative at this early stage. In either case, the lawyer will need to ascertain whether there is available in the law firm another lawyer who can step in to try the case if need be, at a late hour. If substitute counsel from within the firm is not available, the representation will have to be declined or modified so that another lawyer from outside the firm may be retained and available to step in at the time of trial. And, the lawyer must consider whether it would be preferable from an efficiency and continuity standpoint to staff the matter with another lawyer from the outset and relegate the lawyer's own role to that of potential witness.
For MRPC 1.7 purposes, the lawyer will have to determine whether a conflict exists between the likely testimony and the interests of the client. If so, the conflict likely will not be waivable. Under the present facts, such a conflict would not exist. There remains, however, the possibility that having the lawyer prepare the case up to the point of trial and then substituting other counsel, will amount to a material limitation upon representation of the client. In order to deal with that prospect, the lawyer must consult with the client about the ramifications of the lawyer being a witness at trial. Possible conflicts between the lawyer's testimony and the client's interests and recollection should be fully explored, along with the possibility that the lawyer may be disqualified from fulfilling the trial advocate role on the eve of trial. The discussion should include the arrangements that can be made within the lawyer's firm for a substitute. There may be good reasons to have the lawyer who will testify handle pretrial matters, but it is up to the client to assess the advantages and disadvantages after a full and frank discussion and to make the final decision as to the entire representation.