State Bar of Arizona Ethics Opinions

03-01: Lawyer as Witness; Candor Toward Tribunals
1/2003

The Arizona Rules of Professional Conduct ("Rules of Professional Conduct" or "ER") do not prohibit a lawyer from verifying a pleading on behalf of a client so long as the lawyer otherwise complies with the Rules of Professional Conduct in doing so. This opinion does not address whether other substantive or procedural law would permit a lawyer to verify a pleading in any particular proceeding. Should the lawyer become a "necessary witness" in a proceeding, the lawyer may be subject to a motion for disqualification.

FACTS[1]

 

The inquiring attorney asks if he can verify a petition that contains assertions of fact in a family law matter.  The lawyer proposes to verify a pleading in lieu of having the client or other appropriate person verify the petition.  The lawyer further inquires whether, if he verifies the petition, he may become subject to a motion for disqualification under ER 3.7.

 

QUESTIONS PRESENTED

 

  1. Whether, under the Rules of Professional Conduct, a lawyer can ethically verify a pleading?
  2. If so, may the attorney be subject to a motion for disqualification under ER 3.7? 

RELEVANT ETHICAL RULES

 

ER 3.3.            Candor Toward the Tribunal

 

(a)        A lawyer shall not knowingly:

 

(1)            make a false statement of material fact or law to a tribunal;

 

(2)            except as required by applicable law, fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;

 

* * * *

 

(d)        In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse.

 

ER 3.7.            Lawyer as Witness

 

(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.

 

* * * *

 

OPINION

 

The Comment to ER 3.3 specifies that a lawyer, although responsible for pleadings and other documents prepared for litigation, is not usually required to have personal knowledge of matters averred in such documents.  The assertions in pleadings are generally considered to be those of the client.  "However, an assertion purporting to be on the lawyer's own knowledge, as in an affidavit by the lawyer or in a statement in open court, may properly be made only when the lawyer knows the assertion is true or believes it to be true on the basis of a reasonably diligent inquiry."  Ariz. R.S.Ct. 42, ER 3.3 cmt.  Therefore, to comply with the obligations imposed by the Rules of Professional Conduct, before the lawyer verifies a pleading, the lawyer should either know that the assertions within the pleading are true, or the lawyer should believe the assertions to be true on the basis of a "reasonably diligent inquiry."

 

In verifying a pleading, the lawyer becomes responsible for the contents of the pleading or motion.  In re Shiff, 677 A.2d 422, 424 (R.I. 1996).  In such circumstances the lawyer should be aware that "[t]here are circumstances where failure to make a disclosure is the equivalent of an affirmative misrepresentation."  Ariz. R.S.Ct. 42, ER 3.3 cmt.  A lawyer's verification of a pleading that fails to disclose a material fact, therefore, may amount to misrepresentation to the court on the part of the attorney.  Even with diligent inquiry, a lawyer may unknowingly omit a material fact and be responsible for such omission.  Lawyers are therefore cautioned to exercise care in verifying documents that might be verified more appropriately by others.

 

Assuming compliance with the above requirements and the other requirements of the Rules of Professional Conduct, there is no ethical prohibition against a lawyer verifying a pleading or other paper.  This opinion, however, only addresses the ethical ramifications of such verification.  It does not address whether an attorney is permitted to verify a pleading or other paper under the applicable law or procedure.  Existing law sometimes requires that pleadings or papers be verified by the party or by specified persons.  See, e.g., Ariz. R.Civ.P. 11(b) (verification to be made by the party or a person acquainted with the facts); Ariz. R.Civ.P. 26.1(d) (verification by party required); Ariz. R.Civ.P. 33(a) (verification required by the person making the answers).  Whether an attorney meets such qualifications is a question of law beyond the scope of this Committee's jurisdiction.  Committee on the Rules of Professional Conduct, Statement of Jurisdictional Policies ¶ 6(a) ("[t]he Committee's jurisdiction being limited to the resolution of questions of professional ethics, it will not render opinions . . . [o]n pure questions of law.").

 

The lawyer also inquires as to whether he may be subject to a motion to disqualify under ER 3.7 if he verifies a pleading.  ER 3.7 prohibits a lawyer from acting as an advocate at trial if the lawyer is "likely to be a necessary witness" in the proceeding.  To avoid attempts under ER 3.7 to strategically disqualify opposing counsel, the Arizona Supreme Court has established a two-part standard for determining whether a witness is a "necessary witness" under ER 3.7.  First, the testimony offered by a necessary witness must be "relevant and material" to the issues at trial.  Second, the evidence must also be unobtainable from any other source but the lawyer.  Security Gen. Life Ins. Co. v. Superior Court, 149 Ariz. 332, 335, 718 P.2d 985, 989 (1986).  Only in such cases is disqualification necessary.

 

The inquiring attorney does not provide us with sufficient facts to determine whether under Security General's definition, he is a necessary witness in the proceeding, or is likely to become one by verifying the petition.  If either is the case, he may be subject to discipline if he nevertheless represents his client at trial.  As Security General suggests, however, motions for disqualification are the most common method for resolving potential infractions of ER 3.7.  Disqualification is a remedy which is inherently committed to the courts.  To the extent that the inquiring attorney asks the Ethics Committee to decide whether he could be disqualified pursuant to ER 3.7 for verifying a pleading, we are not in a position to offer an opinion on that question, even if he had given us the facts necessary to do so.

 

In rare cases lawyers have been disciplined for violating ER 3.7 even when they were not disqualified by the trial court.  See, e.g., State ex rel. Nebraska State Bar Ass'n v. Neumeister, 449 N.W.2d 17, 22 (Neb. 1989) ("[t]he fact that the trial court did not disqualify [the lawyer], however, will not exonerate him from discipline where it is found that his conduct is in violation of disciplinary rules"); see Office of Disciplinary Counsel v. Collins, 643 N.E.2d 1082 (Ohio 1994).  The Bar in Arizona has similar discipline authority.

 

CONCLUSION

 

It is not unethical for a lawyer to verify a pleading so long as the lawyer is acquainted with the facts upon which the particular pleading is based, and the pleading otherwise complies with the requirements of the ethical rules.  The lawyer should be mindful that the duty of candor to the tribunal requires that before a lawyer verifies a pleading, the lawyer know the assertions it contains to be true or believes them to be true on the basis of a reasonably diligent inquiry.  A lawyer should also be aware that nondisclosure of a material fact could rise to the level of an affirmative misrepresentation.  Further, if the contents of the verified affidavit serve to make the lawyer a necessary witness, he may subject himself to a motion for disqualification or to other discipline if he nonetheless represents his client at trial.

 

 

 



[1] Formal Opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceedings.  Ó State Bar of Arizona 2003