Can a solo practitioner who is suing his own client for unpaid fees represent his law firm when he is also a necessary witness?

Plain-English summary

The opinion addresses a solo practitioner who owns Lawyer Firm PLLC, sued a client for unpaid fees on the firm's behalf, and is himself a necessary witness to the fee dispute. Opposing counsel moved to disqualify him under Rule 3.7, which bars a lawyer from acting as advocate at a trial in which the lawyer is likely to be a necessary witness.

The committee concludes the lawyer is not prohibited from representing the firm. The purpose of Rule 3.7 is to avoid confusion about the lawyer's role (comment [2]), and that rationale does not apply when the lawyer is also the litigant. Relying on 2011 FEO 1, the committee extends the same analysis to a lawyer-litigant who is the sole owner of his own law practice. The opinion stresses that it is the court's prerogative to decide advocate-witness disqualification when raised by motion; a court might, for example, disqualify the lawyer from a jury trial but not a bench trial. The opinion holds only that the lawyer-litigant is not required to find alternative counsel before the court rules on a motion to disqualify. It acknowledges that North Carolina appellate decisions (Cunningham v. Sams; Harris & Hilton v. Rassette) and out-of-state cases reach different outcomes, illustrating that trial courts retain discretion.

On the second question, the committee concludes that even if the court disqualifies the lawyer at trial, he is not automatically barred from representing the firm in the motion for summary judgment. Rule 3.7(a) is confined to acting as an advocate "at a trial" and does not automatically extend to pretrial proceedings. Absent a conflict or a disqualifying court order, a lawyer may represent a client in pretrial proceedings even if likely to be a necessary witness at trial, though the opinion notes some courts disqualify lawyers from pretrial activities that involve evidence revealing the lawyer's dual role.

In practice

Under the North Carolina rules as they stood at the time of the opinion, a solo practitioner who is both the litigant (through his wholly owned firm) and a necessary witness is not, by Rule 3.7 alone, required to step aside before a court rules on a disqualification motion, because the rule's role-confusion rationale does not apply to a lawyer-litigant. The opinion treats disqualification as a matter for the court's discretion, which may turn on case-specific facts such as whether the trial is to a jury or the bench.

The opinion holds that Rule 3.7's bar is limited to acting as an advocate at trial and does not automatically reach pretrial proceedings such as a summary-judgment motion, so absent a conflict or a court order, the lawyer may continue to handle pretrial matters; it notes, however, that some courts disqualify a lawyer from pretrial activities that would reveal the lawyer's dual role.

Common questions

Q: Can a solo lawyer who sues his own client for fees represent his firm when he is also a witness?

A: Yes, at least until the court rules. The opinion concludes Rule 3.7 does not require the lawyer-litigant to find substitute counsel before a court decides a motion to disqualify, because the rule's rationale does not apply when the lawyer is also the litigant.

Q: Who decides whether the lawyer is disqualified?

A: The court. The opinion states it is the sole prerogative of a court to determine advocate-witness issues raised on a motion to disqualify, and a court may, for example, disqualify in a jury trial but not a bench trial.

Q: If disqualified at trial, can the lawyer still argue the summary-judgment motion?

A: Yes, generally. The opinion concludes Rule 3.7(a) applies to acting as advocate "at a trial" and does not automatically extend to pretrial proceedings, absent a conflict or court order, though some courts disqualify from pretrial activities that reveal the lawyer's dual role.

Background and rules framework

The opinion interprets Rule 3.7 (Model Rule 3.7, lawyer as witness), which provides that a lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness, subject to limited exceptions. Comment [2] explains the rule's purpose is to avoid confusion about the lawyer's role. The committee follows 2011 FEO 1 in concluding the rationale does not apply when the lawyer is the litigant, and extends that to a solo owner litigating the firm's own claim.

The opinion notes North Carolina appellate decisions and out-of-state authority reflecting that disqualification is committed to the trial court's discretion and can come out differently on different facts.

Citations and references

Rules of Professional Conduct:

• Model Rule 3.7 / NC Rule 3.7(a) and cmt. [2] (lawyer as witness; avoiding confusion about the lawyer's role)

Cases:

• Cunningham v. Sams, 161 N.C. App. 295 (2003), advocate-witness disqualification.
• Harris & Hilton v. Rassette, 798 S.E.2d 154 (N.C. App. 2017), advocate-witness disqualification.
• Nat'l Child Care, Inc. v. Dickinson, 446 N.W.2d 810 (Iowa 1989), lawyer representing solely owned entity as witness (contrasting authority).
• Mt. Rushmore Broad., Inc. v. Statewide Collections, 42 P.3d 478 (Wyo. 2002), lawyer representing solely owned entity as witness (contrasting authority).
• Williams v. Borden Chem. Inc., 501 F. Supp. 2d 1219 (S.D. Iowa 2007), trial disqualification but pretrial activity permitted.
• Lowe v. Experian, 328 F. Supp. 2d 1122 (D. Kan. 2004), pretrial activities generally permitted.

Other opinions cited:

• 2011 FEO 1: Rule 3.7's rationale does not apply when the lawyer is also the litigant.

See also

• Alabama Ethics Op. 1991-19: Rule 3.7, Lawyer as a Witness
• Alaska Bar Op. 85-3: Firm Continuing as Trial Counsel When It Must Call a Witness

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2020-formal-ethics-opinion-3/

Original opinion text

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

Facts:

Lawyer is a solo practitioner and the sole owner of his practice, Lawyer Firm PLLC. Lawyer, through Lawyer Firm PLLC, represented Client in an intellectual property matter. Client did not pay the entirety of the invoices submitted by Lawyer Firm PLLC to Client for services rendered. Lawyer, on behalf of Lawyer Firm PLLC, subsequently filed a lawsuit against Client seeking to recover the sums Lawyer contends Client owes to Lawyer Firm PLLC. Lawyer is the sole counsel representing Lawyer Firm PLLC. Because Lawyer performed the legal services that resulted in the dispute over legal fees owed, Lawyer will be a necessary witness in the litigation.

Lawyer, on behalf of Lawyer Firm PLLC, moved for summary judgment against Client. Prior to the court’s ruling on the motion, opposing counsel alleged to the court that Lawyer should be disqualified from representing Lawyer Firm PLLC because Lawyer—a necessary witness to the dispute—is prohibited from serving as both advocate and witness in the matter pursuant to Rule 3.7 of the North Carolina Rules of Professional Conduct.

Inquiry #1:

Is Lawyer prohibited from representing Lawyer Firm PLLC in the dispute between Lawyer Firm PLLC and Client?

Opinion #1:

No. With some limited exceptions, Rule 3.7 provides that a lawyer may not act as advocate at a trial in which the lawyer is likely to be a necessary witness. The underlying reason for the prohibition is to avoid confusion regarding the lawyer’s role. Rule 3.7, cmt. [2]. The rationale does not apply when the lawyer is also a litigant. See 2011 FEO 1. The same analysis applies in this scenario where the lawyer-litigant is the sole owner of his own law practice.

It is the sole prerogative of a court to determine advocate/witness issues when raised in a motion to disqualify. Id. For example, considering the underlying concerns about confusion regarding the lawyer’s role in a particular proceeding, a court may find it necessary to disqualify a lawyer from representing his solo practice in a trial before a jury, but not in a trial before the bench. This ethics opinion merely holds that a lawyer/litigant in this scenario is not required to find alternative counsel prior to a court’s ruling on a motion to disqualify.

The Ethics Committee is aware of the North Carolina Court of Appeals’ decisions in Cunningham v. Sams, 161 N.C. App. 295 (2003) and Harris & Hilton v. Rassette, __ N.C. App. __, 798 S.E.2d 154 (2017). The committee is also aware that different jurisdictions have reached different conclusions on the issue of whether a lawyer may represent his or her solely owned law practice in a dispute against the law practice where the lawyer is a necessary witness. Compare Nat’l Child Care, Inc. v. Dickinson, 446 N.W.2d 810 (Iowa 1989) and Mt. Rushmore Broad., Inc. v. Statewide Collections, 42 P.3d 478 (Wyo. 2002). Despite their differing outcomes, these cases illustrate the overarching principle that a trial court can rationally reach different conclusions based upon the circumstances of each case, and that the trial court appropriately retains discretion in determining whether disqualification is appropriate in these matters.

Inquiry #2:

Should the court determine that Lawyer is disqualified from representing Lawyer Firm PLLC at trial, is Lawyer prohibited from representing Lawyer Firm PLLC in the motion for summary judgment?

Opinion #2:

No. Rule 3.7(a) states, “A lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness...” (emphasis added). Rule 3.7’s prohibition on a lawyer acting as both advocate and witness in a particular matter is confined to a lawyer’s representation of a client at trial and does not automatically extend to the lawyer’s representation of a client in pretrial proceedings. Absent a conflict created by the lawyer’s representation in the matter or court order disqualifying the lawyer, a lawyer may represent a client in pretrial proceedings even if the lawyer is likely to be a necessary witness at trial. However, the Ethics Committee notes that some courts would disqualify a lawyer under Rule 3.7 from participating in pretrial activities if the pretrial activities involve evidence that, if admitted at trial, would reveal the lawyer’s dual role. See, e.g., Williams v. Borden Chem. Inc., 501 F. Supp. 2d 1219 (S.D. Iowa 2007) (lawyer, who was to serve as a fact witness, was disqualified from acting as trial counsel but was permitted to engage in pretrial activities other than taking or appearing at depositions); Lowe v. Experian, 328 F. Supp. 2d 1122 (D. Kan. 2004) (disqualification was not required for lawyer’s pretrial activities, “such as participating in strategy sessions, pretrial hearings or conferences, settlement conferences, or motions practice,” but may be necessary if pretrial activities include “obtaining evidence which, if admitted at trial, would reveal the attorney’s dual role[.]”).