Does an adversary's threat to call the opposing lawyer as a trial witness, about a conversation the lawyer is sure never happened, force that lawyer to withdraw as trial counsel?

Plain-English summary

A lawyer defending a client in a civil matter was told by the adversary's counsel that the lawyer might be a "relevant witness" about whether a partnership was discussed at a meeting attended by the client, the adversary, and the lawyer. The adversary had testified at deposition that a proposed partnership was discussed at that meeting. The lawyer recalled attending the meeting on unrelated issues and was certain no partnership discussion occurred. The adversary's counsel wrote suggesting the lawyer should withdraw, and the lawyer believed withdrawing would cause the client substantial hardship. The lawyer asked whether the prospect of being called to testify disqualified the lawyer from trying the case.

The opinion concluded a lawyer is not obliged to withdraw from a contested matter merely because an adversary's counsel suggests the lawyer "may be a relevant witness." Under MRPC 3.7(a), the test is whether the lawyer "is likely to be a necessary witness," and that judgment falls in the first instance to the lawyer. The lawyer's own trial strategy would not call for testimony about a conversation the lawyer is sure did not occur. The opinion reasoned it was doubtful the adversary's counsel could conclude the lawyer's testimony was "necessary" knowing the lawyer would deny the conversation on which the adversary's position depended; if the adversary persisted after learning the testimony would be adverse, the disqualification prospect would appear to be no more than a tactical ploy. The opinion suggested the lawyer could take the matter to the trial court by motion in limine or similar procedure, but held that MRPC 3.7 does not require withdrawal merely because an adversary threatens to call the lawyer as a trial witness.

The opinion also addressed the substantial-hardship exception in MRPC 3.7(a)(3). The lawyer reported the litigation had been pending 18 months with research and discovery completed. The opinion declined to opine on fact issues such as whether disqualification would go beyond mere inconvenience and rise to substantial hardship, observing the lawyer could bring that issue to the court for a ruling before trial.

Currency note

This opinion was issued in 1997, before later amendments to the Michigan 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 an adversary's threat to call the lawyer as a witness force the lawyer to withdraw?

A: No. The opinion concluded a lawyer need not withdraw merely because an adversary suggests the lawyer "may be a relevant witness"; MRPC 3.7 turns on whether the lawyer is likely to be a necessary witness.

Q: Who decides whether the lawyer is a "necessary" witness?

A: The opinion concluded the lawyer must decide in the first instance whether the lawyer is likely to be a necessary witness, and that a lawyer's own trial strategy would not call for testimony about a conversation the lawyer is certain did not occur.

Q: What if the adversary keeps insisting the lawyer will be a witness?

A: The opinion concluded that if the adversary persists after learning the lawyer's testimony would be adverse to the adversary's position, the disqualification prospect would appear to be no more than a tactical ploy, which the lawyer could take to the trial court by motion in limine.

Q: What about the substantial-hardship exception?

A: The opinion declined to opine on whether disqualification here would rise to substantial hardship under MRPC 3.7(a)(3), noting that is a fact question the lawyer can bring to the court for a ruling before trial.

Background and rules framework

The opinion interpreted MRPC 3.7 (Model Rule 3.7), the advocate-witness rule. 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, except where the testimony relates to an uncontested issue, relates to the nature and value of legal services in the case, or where disqualification would work substantial hardship on the client. The opinion focused on the threshold question of whether the lawyer is "likely to be a necessary witness" and on the substantial-hardship exception in 3.7(a)(3).

Citations and references

Rules of Professional Conduct:

• MR 3.7 / MRPC 3.7 (lawyer as witness)

Other opinions cited:

• Michigan RI-226: lawyer as witness

See also

• Mich Ethics Op. RI-264: lawyer serving as advocate and witness in arbitration
• AL Ethics Op. 1991-19: Rule 3.7 and the lawyer as a witness
• DC Ethics Op. 228: lawyer-witness participation in pre-trial proceedings

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=1167&Type=6

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

RI-297

August 11, 1997

SYLLABUS

A lawyer is not disqualified from representing a client as trial advocate merely because an adversary threatens to call the lawyer as a witness.

References: MRPC 3.7; RI-226

TEXT

A lawyer who is defending a client in a civil matter has been advised by the adversary's counsel that the lawyer may be a "relevant witness" with regard to the making of a partnership agreement between the litigants. The adversary has testified in a deposition that a proposed partnership was discussed at a meeting between the client, the adversary and the lawyer. The lawyer recalls attending the meeting, recalls that it dealt with issues and events entirely unrelated to those underlying the present litigation, and is certain that no discussion about a partnership between the client and the adversary took place. The adversary's counsel has written the lawyer suggesting that the lawyer should withdraw as defense counsel "in accordance with MRPC 7.3." The lawyer believes that withdrawing from the representation (and thus requiring the client to retain new counsel) will result in substantial hardship to the client.

The lawyer asks whether this prospect -- i.e., that the lawyer will be called as a witness at trial to give testimony about a conversation which the lawyer is certain did not occur but which the lawyer's client adversary has testified did take place -- disqualifies the lawyer from conducting the trial as the lawyer's client defense counsel.

MRPC 3.7 states:

"(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:

"(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.

"(b) A lawyer may act as advocate in a trial which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9."

A lawyer is not obliged to withdraw from a contested matter merely because an adversary's counsel suggests that the lawyer "may be a relevant witness" as to some disputed issue. Rather, the lawyer must decide, in the first instance, whether the lawyer "is likely to be a necessary witness." In the present circumstances, the lawyer's own trial strategy surely would not call for the lawyer to testify about a conversation that the lawyer is certain did not occur. Rather, the adversary's counsel has raised the prospect of being called as a witness. It is doubtful that the adversary's counsel could reasonably conclude the lawyer's testimony is "necessary" if the adversary's counsel knows that the lawyer will deny having a conversation upon the existence of which the adversary's position depends. If the adversary's counsel persists in the view that the lawyer will be a trial witness even after learning that the lawyer's testimony on the key issue will be adverse to the adversary's position, the disqualification prospect would appear to be no more than a tactical ploy. The lawyer should consider taking the matter to the trial court, by way of a motion in limine or equivalent procedure, for a ruling; but the Committee does not believe that a lawyer must withdraw under MRPC 3.7 merely because an adversary's counsel threatens to call the lawyer as a trial witness.

The inquiry also suggests that the lawyer's disqualification might be avoided under an exception to MRPC 3.7 where disqualification will work a substantial hardship upon the client. MRPC 3.7(a)(3). The lawyer state that the litigation has been pending 18 months and that research and some discovery work have been done. The Committee is not in a position to opine on fact issues such as whether a lawyer's disqualification in a particular case would have effects that go beyond mere inconvenience and rise to the level of a substantial hardship to the client. No doubt the lawyer will see fit to bring that issue to the court's attention in the context of the disqualification issue and obtain a ruling prior to the commencement of trial.