May a lawyer who witnessed an accident advocate for the plaintiff in the resulting trial?

Plain-English summary

A lawyer witnessed an incident that led to a lawsuit and was asked to represent the plaintiff, whose account would match the lawyer’s.

Under Rule 4-3.7, the lawyer cannot advocate at trial if likely to be a necessary witness. If the lawyer does not anticipate testifying, advocacy is permitted. If necessary-witness status arises at trial, the judge decides whether Rule 3.7(a)(3)’s hardship exception applies. The opinion treats consistent expected testimony as a waivable potential Rule 4-1.7 conflict; anticipated inconsistency is nonwaivable.

In practice

The opinion turns on whether the lawyer is likely to be a necessary witness and whether lawyer and client testimony are expected to agree.

Common questions

Q: May the lawyer serve as trial counsel without expecting to testify?

A: Yes. The opinion permits advocacy if the lawyer does not plan or anticipate being a witness.

Q: What if the lawyer becomes a necessary witness during trial?

A: The judge determines whether the Rule 3.7(a)(3) hardship provision applies.

Q: Can the client waive a conflict from inconsistent testimony?

A: No. The opinion says anticipated inconsistency creates a nonwaivable conflict.

Background and rules framework

The opinion applies Rule 4-3.7 to lawyer advocacy as a necessary witness and Rule 4-1.7 to potential divergence between lawyer and client testimony.

Citations and references

Missouri Rules of Professional Conduct:

• Rule 4-3.7
• Rule 4-1.7

See also

• Missouri Informal Op. 2011-07: Fact Witness Compensation

Source

• Landing page: https://mo-legal-ethics.org/informal-opinion/20040012/

Original opinion text

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

QUESTION: Attorney was witness to an incident on a train, which resulted in a lawsuit. Plaintiff wants Attorney to serve as his counsel. The testimony offered by Attorney would be identical to the eyewitness account of his client. May Attorney serve as Plaintiff’s counsel?

ANSWER: Under Rule 4–3.7, Attorney shall not act as an advocate at trial, if he is likely to be a necessary witness. If Attorney does not plan or anticipate being a witness, he could act as an advocate at trial. If, during the course of the trial, Attorney becomes a necessary witness, it would be up to the judge whether the hardship provision of 3.7(a)(3) would apply. The possible conflict under Rule 4–1.7 is understood to be a potential conflict rather than an actual one. If Attorney and client anticipate any testimony each gives will be consistent, the client can waive the potential conflict that their testimony will unexpectedly diverge at trial. If, however, Attorney believes his testimony will be inconsistent with his client’s testimony, Attorney has a conflict that is not waivable.