ER 3.7 Lawyer as Witness
The Standard
A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness. The prohibition is geared toward eliminating confusion about the lawyer’s role. When a lawyer takes on both roles, jurors are likely to be confused about “whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof.” ER 3.7, Comment [2].
The Limitations
A lawyer can act as advocate and witness if: (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.
Under 3.7(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 ER 1.7 or ER 1.9.
FAQs
Not necessarily. The court must balance these interests. See Security Gen. Life Ins. Co. v. Superior Court, 149 Ariz. 332, 334 (1986). Because the rule deals with the administration of justice rather than a specific client’s individual interest, the client cannot waive the lawyer’s disqualification.
This means more than a “mere declaration that the lawyer will be called as a witness.” Security Gen. Life Ins. Co. v. Superior Court, 149 Ariz. at 355. A motion to disqualify “must be supported by a showing that the attorney will give evidence material to the determination of the issues being litigated [and] that the evidence is unobtainable elsewhere.” Cottonwood Estates Inc. v. Paradise Builders, 128 Ariz. 99 (Ariz. 1981). If the lawyer’s intended testimony is irrelevant, immaterial, cumulative, or can be obtained from other sources the lawyer is not a necessary witness.” Douglas Richmond, Lawyers as Witnesses, 36 N.M. L.Rev. 47, 52 (2006).
Yes.
Yes. ABA Informal Op. 89-1529 (Oct 29, 1989).
Best Practices
- Preamble
- Client-Lawyer Relationship
- Counselor
- Advocate
- Transactions with Persons Other than Clients
- Law Firms and Associations
- Information about Legal Services
- Maintaining the Integrity of the Profession
- ER 1.1 Competence
- ER 1.2 Scope of Representation
- ER 1.3 Diligence
- ER 1.4 Communication
- ER 1.5 Fees
- ER 1.6 Confidentiality of Information
- ERs 1.7 & 1.10 Conflicts of Interest and Screening Tips
- ER 1.8 Conflict of Interest: Current Clients: Specific Rules
- ER 1.9 Duties to Former Clients
- ER 1.11 Special Conflicts of Interest for Former and Current Government Officers and Employees
- ER 1.13 Organization as Client
- ER 1.14 Client with Diminished Capacity
- ER 1.15 Safekeeping Property
- ER 1.16 Declining or Terminating Representation
- ER 1.18 Duties to Prospective Clients
- ER 2.4 Lawyer Serving as Third-Party Neutral
- ER 3.1 Meritorious Claims and Contentions
- ER 3.3 Candor Toward the Tribunal
- ER 3.4 Fairness to Opposing Party and Counsel
- ER 3.5 Impartiality and Decorum of the Tribunal
- ER 3.6 Trial Publicity
- ER 3.7 Lawyer as Witness
- ER 3.8 Special Responsibilities of a Prosecutor
- ER 3.9 Advocate in Nonadjudicative Proceedings
- ER 3.10 Credible and Material Exculpatory Information about a Convicted Person
- ER 4.1 Truthfulness in Statements to Others
- ER 4.2 Communicating with Person Represented by Counsel
- ER 4.4 Respect for Rights of Others
- ER 5.1 Responsibilities of Lawyers Who Have Ownership Interests or are Managers or Supervisors; ER 5.2 Responsibilities of a Subordinate Lawyer; and ER 5.3 Responsibilities Regarding Nonlawyers
- ER 7.1 Communications Concerning a Lawyer's Services and ER 7.3 Solicitation of New Clients
- ER 8.3 Reporting Professional Misconduct