When does a North Carolina lawyer become a 'necessary witness' who cannot act as advocate at trial under Rule 3.7?

Plain-English summary

A lawyer filed a malicious-prosecution suit on behalf of a client and, in the pleadings, recited facts about his own earlier contact with the defendant, including that he had assured the defendant his client had not harmed the animals, asked the defendant to withdraw the criminal charges, and warned about civil liability. The trial court questioned whether the lawyer had made himself a witness by including those factual allegations. The opinion addresses the standard under Rule 3.7(a), which bars a lawyer from acting as advocate at a trial where the lawyer is likely to be a necessary witness, subject to three exceptions (uncontested issues, the nature and value of legal services, or substantial hardship to the client).

The opinion explains that disqualification under Rule 3.7 should occur only on a showing of compelling circumstances, and that the rule reaches only situations where the lawyer's testimony is "necessary," meaning relevant, material, and unobtainable by other means. Whether a lawyer is likely to be a necessary witness is, per the opinion, best left to the discretion of the tribunal, which weighs the nature of the case, the subject of the lawyer's testimony, the weight that testimony might carry on disputed issues, and the availability of other witnesses or documentary evidence. The opinion's Editor's Note points readers to 2011 FEO 1 for additional guidance.

In practice

Under the North Carolina rule as it stood at the time of the opinion, conduct that places a lawyer's own factual knowledge at issue does not automatically disqualify the lawyer; per the opinion, disqualification under Rule 3.7 requires compelling circumstances and a determination that the lawyer's testimony is relevant, material, and unobtainable by other means, and that determination is one the opinion leaves to the trial court's discretion.

Common questions

Q: Does putting facts the lawyer personally knows into a pleading make the lawyer a witness?

A: Not automatically. The opinion frames the question under Rule 3.7(a) and explains that disqualification follows only where the lawyer is "likely to be a necessary witness," which the opinion treats as a matter for the trial court rather than an automatic consequence of pleading facts within the lawyer's knowledge.

Q: What does it take to be a "necessary witness" under Rule 3.7?

A: Per the opinion, the lawyer's testimony must be "necessary," which it describes as testimony that is relevant, material, and unobtainable by other means, and disqualification should occur only upon a showing of compelling circumstances.

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

A: The opinion states the issue is best left to the discretion of the tribunal, which considers the nature of the case, the subject and weight of the lawyer's testimony on disputed issues, and the availability of other witnesses or documentary evidence.

Background and rules framework

The opinion applies North Carolina Rule 3.7 (lawyer as witness, the analogue of Model Rule 3.7). Rule 3.7(a) prohibits 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 rendered, or where disqualification would work substantial hardship on the client. The opinion draws its "necessary witness" and "compelling circumstances" standards from out-of-state case law and the annotated Model Rules, and it cross-references 2011 FEO 1.

Citations and references

Rules of Professional Conduct:

• MR 3.7 / NC Rule 3.7(a) (lawyer as witness; "necessary witness" standard and exceptions)

Cases:

• State v. Schmitt, 102 P.3d 856, 859 (Wash. Ct. App. 2004), disqualification under the advocate-witness rule requires "compelling circumstances."
• Fognani v. Young, 115 P.3d 1268 (Colo. 2005), factors for whether a lawyer is likely to be a necessary witness.

Other authorities:

• Annotated Model Rules of Prof'l Conduct (6th ed. 2007), p. 361 (testimony is "necessary" when relevant, material, and unobtainable by other means).

Other opinions cited:

• NC 2011 FEO 1: additional guidance on the lawyer as advocate and witness (Editor's Note).

See also

• AL Ethics Op. 1991-19: Lawyer-as-Witness and Pre-Trial
• DC Ethics Op. 228: Lawyer-Witness in Pretrial Matters
• DC Ethics Op. 390: Prior Work, Conflicts, Witness Rule

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2012-formal-ethics-opinion-15/

Original opinion text

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

Editor’s Note: See 2011 FEO 1 for additional guidance.

Inquiry:

Based on allegations by A, Defendant B was arrested and charged with cruelty to animals. B’s lawyer wrote to A and asked him to withdraw the charges. B’s lawyer advised A that B had not harmed the animals and advised A that he could be sued civilly for maliciously instituting charges against B without probable cause. Eventually, B’s motion for a directed verdict was granted in the matter.

Lawyer, on behalf of B, filed a malicious prosecution suit against A. The pleadings contained an allegation that Lawyer had contacted A, assured A that B had not harmed his animals, asked A to withdraw the charges, and advised A that “persons who maliciously institute charges without probable cause could be held liable for damages.” The pleading then alleges that A “maliciously refused to contact the relevant law enforcement authorities to inform them of the true facts.”

The trial court questions whether Lawyer had made himself a witness by virtue of his inclusion of the above-referenced factual allegations.

Opinion:

Rule 3.7(a) provides that 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.

A lawyer should be disqualified under Rule 3.7 only upon a showing of “compelling circumstances.” State v. Schmitt, 102 P.3d 856, 859 (Wash. Ct. App. 2004). Disqualification is limited to situations where the lawyer’s testimony is “necessary.” It is generally agreed that when the anticipated testimony is relevant, material, and unobtainable by other means, the lawyer’s testimony is “necessary.” See Ann. Model Rules of Prof’l. Conduct (6th ed. 2007), p. 361 (citing cases).

The issue of whether a lawyer is a “necessary witness” and thereby disqualified from acting as a client’s advocate at a trial is an issue best left to the discretion of the tribunal. Determining whether a lawyer is likely to be a necessary witness “involves a consideration of the nature of the case, with emphasis on the subject of the lawyer’s testimony, the weight the testimony might have in resolving disputed issues, and the availability of other witnesses or documentary evidence which might independently establish the relevant issues.” Fognani v. Young, 115 P.3d 1268 (Colo. 2005).