Could a lawyer who witnessed alleged child abuse advocate and testify in the related post-dissolution hearing?

Plain-English summary

A lawyer representing a parent personally witnessed alleged abuse by the other parent and was a necessary witness in a post-dissolution matter.

The opinion said the lawyer could not advocate at trial under Rule 4-3.7. Another firm lawyer could advocate. The witness lawyer could remain involved and present unless witnesses were excluded, and could handle pretrial matters unrelated to the lawyer’s testimony or credibility.

Currency note

This opinion was issued in 2000, before Missouri’s 2007 revisions to the Rules of Professional Conduct. Later amendments or opinions may have changed the analysis. Treat this page as historical context and verify current rules before relying on it. The official Rule 4-1.9 and 4-1.10 reference notes identify July 1, 2007 amendments.

Common questions

Q: Could the witness lawyer act as trial advocate?

A: No. The opinion found that inappropriate under the described circumstances.

Q: Could another lawyer from the firm advocate?

A: Yes. The opinion permitted that under Rule 4-3.7.

Background and rules framework

The opinion applied Rule 4-3.7 to a lawyer who was a necessary witness in the matter.

Citations and references

Missouri Rules of Professional Conduct:

• Rule 4-3.7

See also

• Missouri Informal Op. 20000234: Subpoenaed Advocate

Source

• Landing page: https://mo-legal-ethics.org/informal-opinion/20000170/

• Rule revision reference: Missouri Informal Opinion 20030007

Original opinion text

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

Attorney represents Respondent in a pending post-dissolution matter in which both Petitioner and Respondent have filed Motions to Modify. Attorney personally witnessed Petitioner abuse one of the minor children involved. After witnessing the incident, Attorney called Respondent and reported the incident and Attorney also contacted the local police department. Criminal charges were filed and Petitioner plead not guilty. Attorney is a necessary witness in both the criminal trial and the post-dissolution hearing.

Question 1. Can Attorney represent Respondent as an advocate at the evidentiary hearing of the post-dissolution matter and still take the stand to testify about the incident?

Question 2. Is Attorney precluded from appearing as an advocate for Respondent during the entire evidentiary hearing or may another attorney who is a member of Attorney´s firm appear as an advocate for either (a) the entire hearing or (b) for the limited purpose of appearing as the advocate for Respondent during Attorney´s testimony and during any opening or closing arguments on the pending Motion?

ANSWER: Under the circumstances Attorney has described, it is inappropriate for Attorney to be an advocate at trial in this matter. However, under Rule 4–3.7, another member of Attorney´s firm may serve as the advocate at trial. Attorney may continue to participate in the case, including being present at trial, unless the judge excludes witnesses. Attorney may participate, as counsel, in pre-trial matters, as long as they are not matters that involve Attorney´s role as a witness or Attorney´s credibility.