If a lawyer testified at trial on the client's behalf, can the same lawyer brief and argue the appeal?

Plain-English summary

The committee had twice in the prior year addressed whether a lawyer who testified for a client at trial could represent the same client on appeal, reaching opposite results, and it issued this opinion to articulate a general rule. The starting point is the lawyer-as-witness rule: DR 5-101(B) requires a lawyer to refuse employment in contemplated or pending litigation when the lawyer ought to be called as a witness for the client, and DR 5-102(A) requires withdrawal from a trial when that becomes apparent, subject to four enumerated exceptions the committee assumed did not apply.

Although the rules speak in terms of "trial," the committee concluded the lawyer-witness concern is not confined to trial. Relying on EC 5-10 (the same considerations govern whichever stage the problem arises) and EC 5-9 (an advocate who becomes a witness is reduced to arguing his own credibility, an inconsistent role), the committee held it would be artificial to limit the rule to the trial stage merely because that is where the problem most commonly arises.

The committee adopted a prophylactic rule: the propriety of appellate representation by a lawyer-witness turns on the relationship between the trial testimony and the issues to be briefed and argued on appeal. Because preparing the statement of facts, selecting and emphasizing issues, and presenting witness testimony are all integral to appellate advocacy, a lawyer whose testimony is itself an appellate issue may lack the objectivity needed for independent professional judgment. Accordingly, if the lawyer knows or it is obvious that the subject of his testimony will or ought to be an issue on appeal, he is precluded from appearing as appellate counsel.

The committee illustrated the rule with its two prior inquiries. In the first, a lawyer had testified about a letter that was central to whether the defendant committed an overt act in a conspiracy, an issue squarely on appeal; the committee concluded he could not serve as appellate counsel, noting the risk he would brief the appeal to vindicate his own rejected testimony rather than serve the client. In the second, the lawyer's testimony concerned a waiver issue that would not be raised on appeal and could be isolated from the appellate questions; the committee found no impediment to his handling the appeal. The committee added that a lawyer who may not ethically take the appeal is barred not only from arguing it but also from preparing the brief.

Currency note

This opinion was issued in 1988, before New York replaced the Code of Professional Responsibility (the Disciplinary Rules cited here) with the New York Rules of Professional Conduct, effective April 1, 2009. The lawyer-as-witness rule is now Rule 3.7. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer who testified at trial also handle the appeal?

A: The committee concluded it depends: the lawyer is precluded if he knows or it is obvious that the subject of his testimony will or ought to be an issue on appeal, but may handle the appeal if the testimony can be isolated from the appellate issues.

Q: Why does the trial-focused language of DR 5-101(B) and DR 5-102(A) reach the appeal?

A: The committee concluded, relying on EC 5-9 and EC 5-10, that the lawyer-witness concern arises at every stage and that confining the rule to trial would be artificial because trial is simply the most common context.

Q: If the lawyer is disqualified from the appeal, can he at least write the brief?

A: The committee concluded no; a lawyer who may not ethically take the appeal is forbidden both from arguing the case and from participating in preparing the brief.

Background and rules framework

The opinion applied New York Code DR 5-101(B) (refusing employment where the lawyer ought to be a witness for the client) and DR 5-102(A) (withdrawing when that becomes apparent), informed by EC 5-2, EC 5-9, and EC 5-10. These correspond to ABA Model Rule 3.7 (lawyer as witness).

Citations and references

Rules of Professional Conduct:

• New York Code DR 5-101(B), DR 5-102(A); EC 5-2, EC 5-9, EC 5-10 (applied in the opinion)
• MR 3.7 (lawyer as witness)

Cases:

• General Mill Supply Co. v. SCA Services, Inc., 697 F.2d 704 (6th Cir. 1982), rejecting a literal reading of "trial" in the Canon 5 rules
• International Electronics Corp. v. Flanzer, 527 F.2d 1288 (2d Cir. 1975), jury evaluation of a lawyer-witness's testimony

Other opinions cited:

• ABA Formal Opinion 339 (1975): the advocate-witness rule

See also

• NYC Bar Formal Op. 1988-5: Lawyer-Tenants in Cooperative and Condominium Buildings
• NYC Bar Formal Op. 1990-4: Volunteer Judge and Mediator Conflicts

Source

• Landing page: https://www.nycbar.org/reports/formal-opinion-1988-9/