Ezel / Ethics Opinions / ISBA
ISBA 2011

A trustee's lawyer will likely be called as a witness; how far can the lawyer keep representing the trustee?

Short answer: The lawyer may handle all pre-trial work up to the commencement of trial but may not act as trial counsel at any point during the trial, even before being called. The lawyer may also continue representing the trustee in other matters that do not involve appearing as a witness before the trier of fact.

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This page answers the general question as of 2011. Ezel answers yours: whether it's allowed on your facts, under the current Illinois Rules of Professional Conduct, with citations.

Currency note: this opinion is from 2011
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.
Disclaimer: Advisory only. Not binding precedent.
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

The opinion arises from litigation contesting a will and an associated trust, where the attorney representing the trustee is likely to be called as a witness by the adverse party and intends to turn the case over to trial counsel when it proceeds to trial. The questions are how far the trustee's attorney may continue to act, whether the lawyer may serve as trial counsel up to the moment of being called as a witness, and whether the lawyer may continue representing the trustee in other trust-related matters.

Applying Rule 3.7(a), and presuming none of the rule's exceptions apply, the opinion concludes the lawyer's concern (confusing or prejudicing the trier of fact by having a lawyer act as both advocate and witness) arises only when the lawyer actually appears before the trier of fact. It therefore concludes the trustee's attorney may participate in all pre-trial activities until the commencement of trial. The opinion notes that where the lawyer is on notice of likely being a necessary witness, Rules 1.2(c) and 1.4 likely require informing the trustee of, and potentially obtaining consent to, the limits on the representation.

The opinion then concludes the lawyer may not act as trial counsel even up until being called, because once the trial begins and the lawyer participates in full view of the trier of fact, all of the concerns Rule 3.7 guards against come into play; absent an exception, appearing and acting as trial counsel in any portion of the trial is prohibited. Finally, because Rule 3.7 addresses only acting as a necessary witness at trial, the opinion concludes the lawyer may continue to represent the trustee in all other legal matters that do not involve appearing as a witness before the trier of fact.

In practice

Under the Illinois Rules, the opinion holds that the line Rule 3.7 draws is the start of trial: the lawyer-witness may do everything up to that point, may not act as trial counsel in any portion of the trial, and remains free to handle the client's other, non-trial matters. The opinion treats Rules 1.2(c) and 1.4 as requiring the lawyer to inform the client of the limit on the representation once the lawyer is on notice of likely being a witness.

Common questions

Q: Can a lawyer who will be a witness handle the case before trial?

A: Yes. The opinion concludes the trustee's attorney may participate in all pre-trial activities up to the commencement of trial, because Rule 3.7's concerns arise only when the lawyer appears before the trier of fact.

Q: Can the lawyer act as trial counsel up until the moment of being called?

A: No. The opinion concludes that once the trial begins the lawyer may not act as trial counsel in any portion of it, absent one of Rule 3.7(a)'s exceptions.

Q: Can the lawyer keep handling the client's other matters?

A: Yes. The opinion concludes Rule 3.7 reaches only trial advocacy, so the lawyer may continue representing the trustee in other matters that do not involve appearing as a witness.

Q: Does the lawyer have to tell the client about the disqualification?

A: The opinion concludes that where the lawyer is on notice of likely being a necessary witness, Rules 1.2(c) and 1.4 likely require informing the client and potentially obtaining consent to the limits on the representation.

Background and rules framework

The opinion interprets Illinois Rule 3.7 (lawyer as witness), including the exceptions in Rule 3.7(a) for uncontested issues, the value of legal services, and substantial hardship, together with the limited-scope and communication provisions of Rules 1.2(c) and 1.4. It draws on Section 108 of the Restatement (Third) of the Law Governing Lawyers.

Citations and references

Rules of Professional Conduct:

  • MR 3.7 (lawyer as witness) / IL Rule 3.7(a)
  • MR 1.2(c), MR 1.4 (limited scope; communication) / IL Rules 1.2(c), 1.4

Cases:

  • Culebras Enterprises Corp. v. Rivera-Rios, 846 F.2d 94 (1st Cir. 1988), pre-trial work does not violate Rule 3.7
  • Weil, Freiburg and Thomas, P.C. v. Sara Lee Corp., 218 Ill. App. 3d 383 (1st Dist. 1991), purpose of the advocate-witness rule

See also

Source

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