Can a lawyer who will be a witness still work on the case before trial under Rule 3.7?

Plain-English summary

The Commissioner of Political Practices (COPP), a six-person agency with two staff lawyers, asked whether staff attorney Jonathan Motl complies with Rule 3.7 when he performs pretrial work and testifies in civil campaign-practice enforcement actions while the second COPP lawyer, Jaime MacNaughton, serves as trial counsel. The committee answers yes.

Rule 3.7(a) bars a lawyer who is "likely to be a necessary witness" from acting as advocate "at trial," subject to exceptions. Following what it calls the majority of courts and ethics committees, the committee reads the prohibition narrowly: it reaches trial advocacy only, not pretrial work. Motl may take and defend depositions (other than his own), conduct discovery, prepare witnesses, appear at hearings, and otherwise prepare the case, and may appear in court as the party's representative and testify, so long as he does not serve as trial advocate.

On imputation, Rule 3.7(b) provides that a lawyer may act as advocate at a trial where another lawyer in the firm is a necessary witness, unless precluded by the conflict rules 1.7 or 1.9. So MacNaughton's role as trial lawyer is not barred by Motl's expected testimony absent a separate conflict; the committee notes that Comments [5] through [7] to Model Rule 3.7 caution lawyers to stay alert to such conflicts.

In practice

Under this opinion, a lawyer who expects to be a necessary witness is not disqualified from pretrial participation; Rule 3.7(a)'s bar is limited to acting as advocate at trial. Per the opinion, disqualification of the witness-lawyer is not automatically imputed to other lawyers in the same office under Rule 3.7(b), absent a Rule 1.7 or 1.9 conflict.

Common questions

Q: Does Rule 3.7 disqualify a lawyer-witness from pretrial work?

A: No. The opinion holds that Rule 3.7(a) prohibits only "acting as an advocate at trial"; the majority of courts permit pretrial preparation by a lawyer who will testify.

Q: Can another lawyer in the same office try the case if a colleague is a necessary witness?

A: Yes. Rule 3.7(b) permits it unless a Rule 1.7 or 1.9 conflict is present; the opinion says disqualification is not automatically imputed to associated lawyers.

Q: What pretrial activities may a likely witness-lawyer perform?

A: Per the opinion: pleadings and motions, taking and defending depositions (other than his own), discovery, witness preparation, and appearing at hearings.

Q: Why does the rule single out the trial setting?

A: The opinion explains the rule aims to prevent the trier of fact from being confused about whether a lawyer's statement is testimony or argument, a risk that arises at trial.

Background and rules framework

The opinion interprets Rule 3.7 (Lawyer as Witness; Model Rule 3.7), with the conflict rules 1.7 and 1.9 governing imputation. Montana follows the Model Rules without adopting the comments, though the opinion cites the Model Rule 3.7 comments and the Restatement as persuasive.

Citations and references

Rules of Professional Conduct:

• Model Rule 3.7 / Mont. R. Prof. Cond. 3.7 (lawyer as witness)
• Model Rule 1.7 and 1.9 / Mont. R. Prof. Cond. 1.7, 1.9 (conflicts governing imputation)

Cases:

• Culebras Enter. Corp. v. Rivera-Rios, 846 F.2d 94 (1st Cir. 1988), pretrial work by likely witness-lawyers
• United States v. Castellano, 610 F. Supp. 1359 (S.D.N.Y. 1985), full pretrial participation permitted
• Main Events Prods. v. Lacy, 220 F. Supp. 2d 353 (D.N.J. 2002), disqualification limited to trial counsel
• Ford v. State, 628 S.W.2d 340 (Ark. Ct. App. 1982), handicap in cross-examining a lawyer-witness

Other authority cited:

• Restatement (Third) of the Law Governing Lawyers Sec. 108
• ABA Informal Op. 89-1529 (1989); Colorado Ethics Op. 78 (rev. 1997); Utah Ethics Op. 04-02 (2004)
• Montana Formal Ethics Op. 050317 (advocate-witness rule)

See also

• MT Ethics Op. 050317: Deputy County Attorney as Witness
• AL Ethics Op. 1991-19: Lawyer-as-Witness and Pre-Trial

Source

• Landing page: https://www.montanabar.org/For-Attorneys/State-Bar-Resources/Ethics-Opinions
• Original PDF: https://www.montanabar.org/Portals/MONTANA/140519.pdf

Original opinion text

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

ETHICS OPINION 140519

Facts:

The office of the Commissioner of Political Practices (“COPP”) is a small state
agency with a limited budget and a staff of six people. Two of the six COPP staff
are attorneys licensed to practice law in Montana. COPP staff attorneys are
Jonathan Motl (also Commissioner) and Jaime MacNaughton.

The Commissioner investigates complaints that allege campaign practice
violations. The Commissioner’s staff investigates these complaints and the
Commissioner then drafts and writes a decision as to whether or not sufficient facts
exist to show campaign practice violations. The final decision is a non-binding
agency decision. The decision, however, can be a sufficient platform to allow the
Commissioner and the candidate or political committee addressed by the complaint
to settle the matter by the negotiation of a fine. The settlement is a final resolution
of the complaint.

COPP is dealing with a number of complaints over Western Tradition Partnership,
a nonprofit organization that is alleged to have been connected with “dark money”
use in Montana’s 2010 elections. The Commissioner has issued a number of
decisions on this issue, which have not been settled and must now be prosecuted in
state district court. COPP has filed nine civil enforcement actions against nine
2010 candidates for public office, and anticipates filing more.

COPP files each enforcement action as a civil complaint in the 1st Judicial District.
The complaints list “Jonathan Motl and Jaime MacNaughton” as attorneys for the
Commissioner of Political Practices.
COPP intends to use Jonathan Motl in an active litigation role in all of the district
court enforcement actions. Mr. Motl will take and defend depositions (other than
his own), prepare and send discovery, interview and prepare witnesses, and
generally work on the case. Mr. Motl will not appear as trial lawyer or advocate as
a lawyer in any trial of any enforcement action. Jaime MacNaughton (who will
also be involved in discovery) will act as the trial lawyer. Mr. Motl will appear in
court as the representative of the party and will advocate as a witness for the party.
COPP indicates that it does not have the resources to engage another attorney and
it is therefore dependent on use of Jonathan Motl and Jaime MacNaughton in the
manner set out above.

COPP requests a determination that its attorney, Jonathan Motl, is in compliance
with Rule 3.7, Mont.R.Prof.Cond., when he acts as set out above.

Short Answer:

Yes, COPP’s intention to use Mr. Motl in the civil enforcement actions as an
advocate and witness is appropriate under Rule 3.7, Mont. R. Prof. Cond.
(sometimes referred to as the “lawyer-witness rule” or the “advocate-witness
rule.”) Rule 3.7(a) addresses advocating “at trial.” Case law construing the rule
generally limits disqualification of a lawyer-witness as trial counsel but not from
participating in pretrial matters. Rule 3.7(b) makes it clear that disqualification is
not automatically imputed to partners and associates of the disqualified lawyer-
witness at trial, unless a separate conflict of interest is present.

General Discussion:

Rule 3.7, Mont.R.Prof.Cond., states:

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

As noted in Montana Formal Ethics Opinion 050317, the prohibition against a
lawyer from serving as advocate and testifying as a witness in the same matter is
essentially aimed at eliminating confusion about the lawyer’s role. As an
advocate, the lawyer’s task is to present the client’s case and to test the evidence
and arguments put forth by the opposing side. A witness, however, provides sworn
testimony concerning facts about which he or she has personal knowledge or
expertise. When a lawyer takes on both roles, jurors are likely to be confused
about whether a statement by an advocate witness should be taken as proof or as an
analysis of the proof (see Comment 2, below).

Rule 3.7 is designed to preserve the distinction between advocacy and evidence
and to protect the integrity of the advocate’s role as an independent and objective
proponent of rational argument. This is discussed in the Comments to the Model
Rules:

  [1] Combining the roles of advocate and witness can prejudice the tribunal
  and the opposing party and can also involve a conflict of interest between
  the lawyer and client.
  [2] The tribunal has proper objection when the trier of fact may be confused
  or misled by a lawyer serving as both advocate and witness. The opposing
  party has proper objection where the combination of roles may prejudice that
  party’s rights in the litigation. A witness is required to testify on the basis of
  personal knowledge, while an advocate is expected to explain and comment
  on evidence given by others. It may not be clear whether a statement by an
  advocate-witness should be taken as proof or as an analysis of the proof.

See also Restatement (Third) of the Law Governing Lawyers, §108 cmt. b (2000)
(“combined roles risk confusion on the part of the factfinder and the introduction
of both impermissible advocacy from the witness stand and impermissible
testimony from counsel table.”)

Further, the rule protects trial counsel from having to cross-examine opposing
counsel and impeach his or her credibility, even if only on the obvious ground of
interest in the outcome of the case. See, e.g., Ford v. State, 628 S.W.2d 340 (Ark.
Ct. App. 1982) (opposing counsel handicapped in cross-examining and arguing
credibility of lawyer-witness); Model Code EC 5-9 (“If a lawyer is both counsel
and witness, he becomes more easily impeachable for interest and thus may be a
less effective witness. Conversely, the opposing counsel may be handicapped in
challenging the credibility of the lawyer when the lawyer also appears as an
advocate in the case.”)

As noted, Rule 3.7(a) prohibits a lawyer who is likely to be a necessary witness
from “acting as an advocate at trial.” The majority of courts and ethics committees
construing the rule have permitted pretrial preparation work by an attorney who
likely will serve as a witness at trial. See, e.g., Culebras Enter. Corp. v. Rivera-
Rios, 846 F.2d 94 (1st Cir. 1988) (lawyers who performed substantial pretrial work
in case in which, had it gone to trial, they would have been called as witnesses but
would not have served as trial counsel did not violate Rule 3.7 because they did not
assume, and did not plan to assume, “advocate at trial” role); United States v.
Castellano, 610 F. Supp. 1359 (S.D.N.Y. 1985) (lawyer for alleged organized

crime group may participate fully in pretrial stage even though he will probably be
called as witness, and other defense counsel are free to consult with him during
trial); United States v. Johnston, 690 F.2d 638 (7th Cir. 1982) (prosecutor who
testified at pretrial suppression hearing is not automatically disqualified from
trying case); Merrill Lynch Bus. Fin. Servs. v. Nudell, 239 F. Supp.2d 1170 (D.
Colo. 2003) (since the rule’s purpose is to avoid jury confusion at trial, it does not
automatically require that lawyers be disqualified from pretrial activities, such as
participating in strategy sessions, pretrial hearings, settlement conferences, or
motions practice; however, continued pretrial involvement cannot be used later as
basis to argue that disqualification at trial works undue hardship); Main Events
Prods. v. Lacy, 220 F. Supp.2d 353 (D.N.J. 2002) (companies’ attorney would be
properly disqualified as necessary witness but was appropriately allowed to
represent client in pretrial matters; disqualification rule is designed to avoid
confusing jury about what is testimony and what is argument); Massachusetts Sch.
of Law at Andover Inc. v. Am. Bar Ass’n, 872 F. Supp. 1346, 1377, aff'd, 107 F.3d
1026 (3d Cir. 1997) (while plaintiff law school’s administrators and faculty were
disqualified by Rule 3.7 from serving as trial counsel, they were not prohibited
from “attending any and all depositions, acting as an advisor, or as a consultant, or
making ‘the snowballs for somebody else to throw’”); DiMartino v. Dist. Court, 66
P.3d 945 (Nev. 2003) (rule doesn’t necessarily disqualify counsel from pretrial
proceedings; holding otherwise to permit total disqualification would invite rule’s
misuse as tactical ploy); Cunningham v. Sams, 588 S.E.2d 484, 487 (N.C. Ct. App.
2003) (“even though an attorney may be prohibited from being an advocate during
trial, the attorney may, nevertheless, represent his client in other capacities, such as
drafting documents and researching legal issues”); Heard v. Foxshire Assocs., 806
A.2d 348 (Md. Ct. Spec. App. 2002) (rule applies only to trials and does not
preclude giving of evidence by attorney of record for party before administrative
agency). See also ABA Informal Ethics Op. 89-1529 (1989) (lawyer who expects
to testify on contested issue at trial may represent party in pretrial proceedings,
provided that client consents after consultation and lawyer reasonably believes that
representation will not be adversely affected by client’s interest in expected
testimony); Colorado Ethics Op. 78 (revised 1997) (rule permits lawyer who may
be necessary witness to continue to represent client “in all litigation roles short of
trial advocacy”); Michigan Informal Ethics Op. CI-1118 (1985) (“advocate” in
context of Rule 3.7 is best defined as person who “participates as a spokesperson
for the client in open court”; lawyer who in his capacity as certified public
accountant will be providing expert testimony in divorce case may also serve as
co-counsel to lawyer from another firm); Utah Ethics Op. 04-02 (2004) (if pretrial
representation is not forbidden by another rule, lawyer who is necessary witness
may represent client in pretrial stage and retain another lawyer to handle trial).

The Committee agrees with the majority of courts and ethics committees
construing Rule 3.7(a). If Mr. Motl is a necessary witness, Rule 3.7(a) prohibits
him from “acting as an advocate at trial.” However, even though it is likely he will
serve as a witness at trial, Mr. Motl is permitted to participate in pretrial matters
such as pleadings, motions, and other papers, taking and defending depositions
(other than his own), preparing and sending discovery, interviewing and preparing
witnesses, appearing at and participating in hearings, and other work leading up to
trial.

Rule 3.7(b) does not extend the prohibition on lawyer-witnesses to the partners and
associates of the testifying lawyer such as other counsel for COPP. Comment [5]
to Model Rule 3.7 notes that the Rule does not automatically forbid lawyers to act
as advocates in a trial where other lawyers from the same firm are testifying as
necessary witnesses. The comment explains that it is unlikely the trier of fact will
be misled under these circumstances. Comments [6] and [7], however, encourage
lawyers to stay alert to the conflicts of interest that may arise when an attorney, or
a lawyer with whom the attorney is associated, is a necessary witness. Counsel
ought to resolve such conflicts in accordance with Rules 1.7 and 1.9.

Cases construing the rule generally support the position that disqualification is not
imputed to other associated attorneys. See, e.g., Brown v. Daniel, 180 F.R.D. 298
(D.S.C. 1998) (no disqualification of entire firm even though partner in firm would
be necessary witness); Ramsay v. Boeing Welfare Benefit Plan Comm., 662 F.
Supp. 968 (D. Kan. 1987) (guided by Rule 3.7(b), court refused to disqualify firm
from representing plaintiff whose wife was firm member and likely witness; any
perception of testifying lawyer’s interest is “attributable to her role as spouse,”
rather than her status as lawyer); Syscon Corp. v. United States, 10 Cl. Ct. 200 (Ct.
Cl. 1986) (refusing to disqualify lawyer whose partner was general counsel and
major stockholder in plaintiff company, where partner’s testimony, if any, would
be peripheral); Owen & Mandolfo v. Davidoff of Geneva Inc., 602 N.Y.S.2d 369
(N.Y. App. Div. 1993) (under post-rules amendment to state’s code, no
disqualification of law firm in arbitration proceeding; even though lawyer who was
closely involved in design and construction project at issue would be testifying,
colleague who was “of counsel” to firm would be handling proceeding); see also
Restatement (Third) of the Law Governing Lawyers, §108 cmt. b (2000) (any other
lawyer in testifying lawyer’s firm may serve as advocate despite disqualification so
long as representation would not involve other conflict of interest such as giving
adverse testimony).

Where, as here, the result would be to bar an entire government office from
prosecuting cases, courts generally are even more hesitant to impute
disqualification of a lawyer-witness to other lawyers in the office. See, e.g., U.S. v.
Watson, 87 F.3d 927 (7th Cir. 1996) (U.S. attorney’s office may prosecute cases
where the office has interviewed a suspect and the statement is at issue); In re
Harris, 934 P.2d 965 (Kan., 1997) (Rule does not disqualify deputy disciplinary
counsel from prosecuting case in which another disciplinary counsel is a witness);
State ex rel. Macy v. Owens, 934 P.2d 343 (Okla. Crim. App. 1997) ( where two
district attorneys were likely to be necessary witnesses, the entire district attorney’s
office could not be disqualified because the office is required by law to prosecute
all crimes within the district and Rule 3.7(b) specifically allows other lawyers in
the office to handle trial); State v. Schmitt, 102 P.3d 856 (Wash. Ct. App. 2004)
(ibid).

For these reasons, under Rule 3.7(b), disqualification of Mr. Motl from serving as
trial counsel is not imputed to other COPP counsel, unless a separate conflict of
interest is present. The facts presented do not suggest that COPP’s trial counsel
would have a conflict in calling Mr. Motl as a witness at trial. However, counsel
are encouraged to be mindful of any circumstances that might give rise to such
conflicts.

Finally, as other authorities note, Rule 3.7 is used in disqualification motions far
more than it is used in discipline. In this regard, paragraph 21 of the Preamble to
the Montana Rules is an appropriate reminder that:

  The Rules are designed to provide guidance to lawyers and to provide a
  structure for regulating conduct through disciplinary agencies….
  Furthermore, the purpose of the Rules can be subverted when they are
  invoked by opposing parties as procedural weapons.

Disqualification motions can be extremely burdensome, expensive, and time-
consuming. So, the potential for abuse as a litigation tactic is well-recognized.
See, e.g., Kalmanovitz v. G. Heileman Brewing Co., 610 F. Supp. 1319 (D. Del.
1985) (motions to disqualify “are often disguised attempts to divest opposing
parties of their counsel of choice”), aff'd, 769 F.2d 152 (3d Cir. 1985); Council for
Nat’l Register of Health Serv. Providers v. Am. Home Assurance Co., 632 F. Supp.
144 (D.D.C. 1985) (noting potential for tactical abuse of disqualification motions,
court held that where lawyers testimony may be relevant but not necessary,
“totality of circumstances,” including client’s desires, must be considered); Devins
v. Peitzer, 622 So. 2d 558 (Fla. Dist. Ct. App. 1993) (refusing to disqualify lawyer

for estate merely because contestants announced intention to call him as adverse
witness on their own behalf, court rejected use of rule as means of removing
opposing counsel by calling him as witness); Klupt v. Krongard, 728 A.2d 727
(Md. 1999) (courts “will take a hard look” at disqualification motions out of
concern that movant will use motion as tactical ploy); May v. Crofts, 868 S.W.2d
397 (Tex. App. 1993) (refusing to disqualify lawyer who represented proponents
of a will in a will contest against allegations of their, and his, undue influence
despite plaintiff’s assertion that she would be calling him as witness; court
expressed disapproval of “tactical” use of lawyer-witness rule, and cited
insufficient showing of prejudice).

Conclusion

If Mr. Motl is a necessary witness in the various civil enforcement actions, counsel
for COPP are not violating Rule 3.7 as long as Mr. Motl does not act as trial
counsel. Even though it is likely he will serve as a witness at trial, Mr. Motl is
permitted to participate as counsel in pretrial proceedings. The disqualification of
Mr. Motl as a witness-advocate at trial is not imputed to other attorneys for COPP,
absent some other conflict of interest not described in the facts presented here.

                THIS OPINION IS ADVISORY ONLY