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DCBAR May 19, 1992

If a lawyer is disqualified as trial counsel because she will be a witness, can she still handle pre-trial matters and help substitute trial counsel?

Short answer: The opinion concluded that a lawyer likely to be a necessary witness at trial, though barred from acting as trial counsel under Rule 3.7(a), may represent the client in most pre-trial proceedings and may assist substitute trial counsel, because the advocate-witness rule reaches only the trial stage. Where the lawyer's professional judgment may be adversely affected by the witness role, she may not handle a pre-trial motion involving her own testimony without the client's consent.

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This page answers the general question as of 1992. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.

Currency note: this opinion is from 1992
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
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About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

Plain-English summary

Opinion 228 (adopted May 19, 1992) answered a lawyer who had represented a client (an association) for several years. In pending litigation, opposing counsel obtained the inquirer's disqualification as trial counsel based on its intention to call him as a witness. The association retained substitute trial counsel, whom the inquirer assisted in trial preparation, and opposing counsel objected that the assistance violated Rule 3.7(a).

The committee explained that Rule 3.7(a) bars a lawyer from acting as advocate "at a trial" where the lawyer is likely to be a necessary witness, and that the rule's purposes (the confusion of proof and analysis, the risk of the lawyer appearing to vouch for his own credibility, the awkwardness of cross-examining a lawyer-adversary, and the appearance of distorting the truth) all relate to the trial. Given the rule's express limitation to the trial stage, the committee concluded that a lawyer-witness may represent the client in most pre-trial matters, including taking depositions, conducting discovery, and arguing most pre-trial motions, and may assist substitute counsel in those matters and in trial preparation. The committee agreed with ABA Informal Opinion 89-1529 (1989), which gave reasons such as possible settlement, the chance the testimony would be replaced, and the unfairness of depriving the client of the lawyer who knows the case best, and it declined to extend the D.C. rule beyond its terms even though it is identical to the Model Rule.

The committee noted limits. Under Rule 1.7(b)(4), where the lawyer's professional judgment on the client's behalf may be adversely affected by the witness role, the lawyer may not represent the client in a pre-trial motion involving her own disputed and material testimony without the client's consent. Representing the client at the lawyer's own deposition raises issues under Rule 1.6 about protecting the client's confidences. And under Rule 1.4(b), once it becomes apparent the lawyer will likely be a witness, she must inform the client and seek informed consent to continued pre-trial representation, with any later withdrawal governed by Rule 1.16(d). The committee observed that Rule 3.7 removed the former Code's imputation of the lawyer's disqualification to the firm.

Currency note

This opinion was issued in 1992, before the District of Columbia's adoption of the 2007 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a lawyer disqualified as trial counsel still handle pre-trial matters?

A: Yes. The committee concluded Rule 3.7(a) reaches only advocacy at trial, so a lawyer likely to be a necessary witness could represent the client in most pre-trial matters, including depositions, discovery, and most pre-trial motions.

Q: Could the lawyer-witness help substitute trial counsel prepare?

A: Yes. The committee concluded the lawyer-witness could assist substitute counsel in pre-trial matters and trial preparation, since those activities fall outside Rule 3.7(a)'s trial-stage prohibition.

Q: Were there limits on the lawyer-witness's pre-trial role?

A: Yes. The committee concluded that under Rule 1.7(b)(4), where the lawyer's professional judgment might be adversely affected by the witness role, she could not argue a pre-trial motion involving her own testimony without the client's consent.

Q: Did the lawyer have to tell the client about becoming a witness?

A: Yes. The committee concluded Rule 1.4(b) required the lawyer to inform the client once it became apparent she would likely be a witness and to obtain informed consent to continued pre-trial representation.

Background and rules framework

The opinion interpreted D.C. Rules 3.7(a), 1.7(b), and 1.4(b). Rule 3.7(a), which is identical to Model Rule 3.7(a), bars a lawyer from acting as advocate at a trial in which the lawyer is likely to be a necessary witness, and the committee held it does not extend to pre-trial work. Rule 1.7(b)(4) bars representation where the lawyer's professional judgment may be adversely affected by the lawyer's own interests, here the witness role. Rule 1.4(b) requires the lawyer to explain the matter so the client can make informed decisions, while Rule 1.6 (confidences) and Rule 1.16(d) (orderly withdrawal) bear on the lawyer's own deposition and any eventual withdrawal.

Citations and references

Rules of Professional Conduct:

  • D.C. RPC 3.7(a) / Model Rule 3.7 (lawyer as witness)
  • D.C. RPC 1.7(b) / Model Rule 1.7 (conflicts; professional judgment adversely affected)
  • D.C. RPC 1.4(b) / Model Rule 1.4 (communication; informed decisions)

Cases:

  • Culebras Enterprises Corp. v. Rivera-Rios, 846 F.2d 94 (1st Cir. 1988), declining to read Rule 3.7 to bar pre-trial out-of-court services
  • Bottaro v. Hatton Associates, 680 F.2d 895 (2d Cir. 1982), the purposes of the advocate-witness rule
  • MacArthur v. Bank of New York, 524 F. Supp. 1205 (S.D.N.Y. 1981), a disqualified firm may consult with and assist substitute counsel
  • Norell, Inc. v. Federated Department Stores, Inc., 450 F. Supp. 127 (S.D.N.Y. 1978), respecting the client's choice of counsel

Other opinions cited:

  • ABA Informal Op. 89-1529 (1989): an advocate-witness may represent the client in pre-trial proceedings

See also

Source

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