If a lawyer must be disqualified because the lawyer will be a witness, can the lawyer's firm still handle discovery and pretrial work?
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This page answers the general question as of 1988. Ezel answers yours: whether it's allowed on your facts, under the current Massachusetts Rules of Professional Conduct, with citations.
Plain-English summary
A lawyer and his firm were required under DR 5-102(A) and (B) to be disqualified from representing a client in litigation, because the lawyer ought to be called as a witness for the client and might also be called by the other side to give testimony prejudicial to the client. Noting that the rule speaks of withdrawing from "the conduct of the trial," the firm asked whether it could still assist as co-counsel with discovery, trial preparation, and pretrial negotiations.
The committee identified two purposes behind the advocate-witness rule. The first is to prevent confusion of the trier of fact about the dual role of an advocate who is also a witness. The second, reflected in the rule's vicarious-disqualification provision, is to protect the firm's independent professional judgment, which may be impaired by the difficulty of assessing the testimony of a fellow firm lawyer, both at trial and during discovery and pretrial negotiation. On that basis the committee concluded that "trial" in DR 5-102 should not be read narrowly to mean only the proceeding before the trier of fact. Acknowledging that courts had split, the committee sided with General Mill Supply Co. v. SCA Services (treating trial and pretrial as a "seamless web") over decisions that confined disqualification to the trial, and distinguished Culebras Enterprises Corp. v. Rivera-Rios, which had reached a less restrictive result under Model Rule 3.7 (a rule with no vicarious disqualification and a narrower aim).
The committee tied the scope of withdrawal to the two policies. The disqualified lawyer should not conduct depositions or engage in pretrial proceedings that might reach the trier of fact in a way that blurs the advocate and witness roles, and should not sit at counsel table during trial except as the court, once informed, permits. To protect the firm's independent judgment, the committee said the better course is to select independent replacement counsel who takes charge of all aspects of the case; while the degree of continued participation will vary, the lawyer and firm must avoid acting or rendering judgments affected by the firm lawyer's witness role. The committee noted the contrast between DR 5-101(B) (when a lawyer must refuse the engagement at the outset) and DR 5-102 (when later-acquired information requires withdrawal), but applied the same two policies to the pretrial stage.
Currency note
This opinion was issued in 1988, before Massachusetts's adoption of the 2015 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: Does the lawyer-witness disqualification reach only the trial?
A: No. The committee concluded that "trial" in DR 5-102 should not be read narrowly, so the disqualified lawyer and firm should also step out of discovery, pretrial proceedings, and pretrial negotiations that implicate the rule's two policies.
Q: Why is the whole firm affected, not just the lawyer-witness?
A: The committee said DR 5-102's vicarious-disqualification provision protects the firm's independent judgment, which may be impaired by the difficulty of assessing a fellow firm lawyer's testimony, so the firm should not continue as co-counsel in the pretrial stage.
Q: What should the client do?
A: The committee said the better course is to select independent replacement counsel who takes charge of all aspects of the case, while the disqualified lawyer and firm avoid acting or rendering judgments affected by the witness role.
Background and rules framework
The opinion applied DR 5-102(A) and (B), the Massachusetts advocate-witness rule, including its vicarious disqualification of the firm, read against DR 5-101(B). Those provisions correspond today to Model Rule 3.7 (lawyer as witness), though the committee emphasized that Model Rule 3.7 is less restrictive: it does not impute the disqualification to the whole firm and is aimed mainly at jury confusion. Imputation generally is now addressed by Model Rule 1.10.
Citations and references
Rules of Professional Conduct:
- DR 5-102(A), (B) / Model Rule 3.7 (lawyer as witness; the firm's disqualification)
- DR 5-101(B) (refusing the engagement at the outset; contrasted)
- Model Rule 1.10 (imputation of conflicts)
Cases:
- General Mill Supply Co. v. SCA Services, Inc., 679 F.2d 704 (6th Cir. 1982) (disqualification reaches pretrial; followed)
- Culebras Enterprises Corp. v. Rivera-Rios, 846 F.2d 94 (1st Cir. 1988) (firm may continue at pretrial under Model Rule 3.7; distinguished)
- Norman Norell Inc. v. Federated Dep't Stores, 450 F. Supp. 127 (S.D.N.Y. 1978) (contrary view)
See also
Source
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