In Colorado, can a lawyer act as trial advocate when the lawyer or a lawyer in the same firm is likely to be a witness, and can a party subpoena opposing counsel as a witness?

Plain-English summary

Opinion 78 (adopted June 18, 1988; revised June 18, 1994, May 10, 1997, and October 20, 2012) addresses two related questions under Colo. RPC 3.7: when a lawyer who will serve as a trial advocate, or another lawyer in that advocate's firm, may also be called as a witness, and the ethical limits on subpoenaing or disclosing an opposing party's lawyer as a witness. The opinion is explicit that it is not a legal opinion on when a disqualification motion should be filed, granted, or denied.

On the advocate-witness rule, the Committee concludes that under Colo. RPC 3.7(a) a lawyer who is likely to be a necessary witness may not act as an advocate at trial unless one of three exceptions applies: the testimony relates to an uncontested issue, it relates to the nature and value of legal services rendered in the case, or disqualification would work substantial hardship on the client. The prohibition is limited to advocacy at trial, so a likely necessary witness may generally accept employment and act in pretrial roles; but the opinion, following Fognani v. Young, notes the trial court has discretion to limit pretrial participation (for example, in depositions) where the lawyer's dual role would likely be revealed at trial. A witness must also be "necessary," meaning the testimony is relevant, material, and unobtainable elsewhere, so merely naming a party's lawyer does not make that lawyer a necessary witness. The opinion also notes the rule's application is unsettled in non-jury trials and that, even where Rule 3.7 permits the dual role, Rules 1.7 or 1.9 (conflicts) may independently bar it; if a conflict requires the witness-lawyer's disqualification, Rule 1.10 imputes it to the firm absent informed consent confirmed in writing, but a pure Rule 3.7(a) bar is personal and is not imputed.

On subpoenaing or listing an opponent's lawyer, the Committee concludes there is no automatic prohibition: a lawyer may call another party's lawyer or a member of that firm where the lawyer has unprivileged, relevant knowledge. But under Williams v. District Court and Taylor v. Grogan, a lawyer may subpoena opposing counsel to testify adversely to that counsel's client only after showing the testimony will be actually adverse, will likely be admissible, and is compellingly needed from no other source. A lawyer should not routinely or lightly subpoena, list, or call opposing counsel, and doing so solely as a contrivance to disqualify (with or without a disqualification motion) violates the Rules, potentially including Rules 3.1 and 8.4(d), and can expose the filing lawyer to sanctions.

In practice

Under the Colorado rule as it stood at the time of the opinion, the analysis turns on whether the lawyer is "likely to be a necessary witness" and on whether the testimony falls within a Rule 3.7(a) exception. The opinion holds that a necessary-witness lawyer generally may not try the case but may handle pretrial work, subject to the court's discretion to limit that role; that another lawyer in the firm may serve as trial advocate unless a Rule 1.7 or 1.9 conflict (which Rule 1.10 would then impute) bars it; and that a party may obtain discovery from or call opposing counsel only on the Williams showing of adversity, admissibility, and compelling need, never as a tactic to disqualify. The opinion suggests a lawyer who anticipates being a witness consult the client early about retaining separate trial counsel. Because Rule 3.7 and the conflict rules may have been amended since 2012, confirm the current rule text before relying on any specific provision.

Common questions

Q: Can I try my own case if I am likely to be a witness?

A: Generally no. The opinion concludes that under Colo. RPC 3.7(a) a lawyer likely to be a necessary witness may not act as an advocate at trial unless the testimony relates to an uncontested issue or to the value of legal services, or disqualification would impose substantial hardship on the client.

Q: Does the rule stop me from handling pretrial work?

A: Usually not. The opinion concludes the prohibition is limited to advocacy at trial, so a likely necessary witness may generally do pretrial work, but the trial court has discretion (per Fognani v. Young) to limit participation in a particular pretrial activity, such as a deposition, where the dual role would likely be revealed at trial.

Q: Can another lawyer in my firm try the case instead?

A: Yes, unless a conflict bars it. The opinion concludes that another lawyer in the firm may act as trial advocate even when a firm lawyer is likely to testify, unless precluded by Rule 1.7 or 1.9; a pure Rule 3.7(a) bar is personal and is not imputed to the firm.

Q: Can I subpoena the opposing lawyer as a witness?

A: Only on a real showing. The opinion concludes a lawyer may subpoena or call opposing counsel adversely to that counsel's client only after showing the testimony is actually adverse, likely admissible, and compellingly needed from no other source (Williams v. District Court).

Q: What if I subpoena opposing counsel mainly to get them disqualified?

A: That violates the Rules. The opinion concludes that using the subpoena power solely as a contrivance to disqualify opposing counsel can constitute conduct prejudicial to the administration of justice under Rule 8.4(d) and a frivolous filing under Rule 3.1, and may expose the lawyer to sanctions.

Background and rules framework

The opinion interprets Colo. RPC 3.7 (lawyer as witness), which became identical to ABA Model Rule 3.7 effective January 1, 2008. Rule 3.7(a) sets the general bar on a necessary-witness lawyer acting as trial advocate and its three exceptions; Rule 3.7(b) governs when another lawyer in the firm may serve as advocate. The opinion reads these together with Colo. RPC 1.7 and 1.9 (current- and former-client conflicts), Rule 1.10 (imputation), Rule 1.6 (confidentiality), Rule 1.2(c) (limiting the scope of representation), and Rules 3.1 and 8.4(d) (frivolous filings and conduct prejudicial to the administration of justice). It traces the rule from the predecessor Code provision DR 5-101(B), noting Rule 3.7's "necessary witness" standard is stricter and less open to tactical exploitation.

Citations and references

Rules of Professional Conduct:

• Colo. RPC 3.7 / Model Rule 3.7 (lawyer as witness; advocate-witness disqualification)
• Colo. RPC 1.7, 1.9 / Model Rules 1.7, 1.9 (current- and former-client conflicts)
• Colo. RPC 1.10 / Model Rule 1.10 (imputation of conflicts)
• Colo. RPC 3.1, 8.4(d) / Model Rules 3.1, 8.4 (frivolous claims; conduct prejudicial to the administration of justice)
• Colo. RPC 1.6, 1.2(c) / Model Rules 1.6, 1.2 (confidentiality; limited-scope representation)

Cases:

• Williams v. District Court, 700 P.2d 549 (Colo. 1985), three-part showing required to subpoena opposing counsel
• Taylor v. Grogan, 900 P.2d 60 (Colo. 1995), applying the Williams factors in civil cases
• Fognani v. Young, 115 P.3d 1268 (Colo. 2005), substantial-hardship factors and limits on pretrial participation
• People ex rel. S.G., 91 P.3d 443 (Colo. App. 2004), Rule 3.7 inapplicable to post-trial proceedings
• United States v. Gonzalez-Lopez, 548 U.S. 140 (2006), erroneous disqualification of chosen counsel violates the Sixth Amendment

See also

• AlaBar Op. 1991-19: Rule 3.7, Lawyer as a Witness
• Alaska Bar Op. 85-3: Firm Calling a Former Associate as a Witness
• Alaska Bar Op. 86-5: Withdrawal When the Lawyer Is a Potential Witness

Source

• Landing page: https://www.cobar.org/ethicsopinions
• Original PDF: https://www.cobar.org/Portals/COBAR/repository/ethicsOpinions/FormalEthicsOpinion_78_2011.pdf