Does the advocate-witness rule apply in an arbitration, so a lawyer who may have to testify must consider withdrawing as the advocate?

Plain-English summary

A lawyer had represented a labor union in collective bargaining and was representing it in a grievance arbitration over the meaning of a provision he had negotiated. The employer planned to call its own negotiator as a witness, and the inquiring lawyer believed he might have to testify in rebuttal. He asked whether the advocate-witness rule would prevent him from serving as both the union's advocate and a witness in the arbitration.

The committee held that the rule applies. Under DR 5-102(A), a lawyer must withdraw as an advocate before a tribunal if the lawyer learns, or it is obvious, that the lawyer ought to be called as a witness on the client's behalf. The Code's Definition 6 defines "tribunal" to include not only courts but "all other adjudicatory bodies," and the committee concluded that a single arbitrator or a panel of arbitrators is an adjudicatory body, noting that courts routinely refer to "arbitral tribunals." The committee cited authority applying DR 5-102 in arbitration (including Virginia Op. 655) and acknowledged contrary Pennsylvania authority treating "informal" labor arbitration differently.

The committee explained that a lawyer who ought to be called as a witness may continue as advocate only if one of the four exceptions in DR 5-101(B) applies. The lawyer must continually assess, based on all the facts, whether the duty to withdraw has been triggered. The committee added that the DR 5-101(B)(4) exception, based on the substantial hardship to the client from losing the lawyer's distinctive value, applies only in the most exceptional situations, and pointed the lawyer to the principles in EC 5-10.

Currency note

This opinion was issued in 1993, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009. The advocate-witness provisions have since been recast in 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 Treat this page as historical context, not current guidance.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: Does the advocate-witness rule apply in arbitration, or only in court?

A: It applies in arbitration. The committee concluded that an arbitrator or arbitration panel is an "adjudicatory body," and therefore a "tribunal" under Definition 6, so DR 5-102(A) governs.

Q: Must a lawyer who may testify automatically step down as advocate?

A: Not automatically. The duty arises when the lawyer learns, or it is obvious, that he ought to be called as a witness; at that point he must withdraw as advocate unless a DR 5-101(B) exception applies.

Q: How hard is it to invoke the substantial-hardship exception?

A: The committee said the DR 5-101(B)(4) exception applies only in the most exceptional situations and directed lawyers to the principles in EC 5-10.

Background and rules framework

The opinion interpreted New York's former Code: DR 5-102(A) (withdrawal when the lawyer ought to be a witness), DR 5-101(B) (exceptions permitting a lawyer-witness to remain as advocate), Definition 6 ("tribunal"), and EC 5-10. The closest Model Rule analogue is Rule 3.7 (lawyer as witness). New York replaced the Code with the Rules of Professional Conduct in 2009; the provisions cited here are historical.

Citations and references

Rules of Professional Conduct:

• MR 3.7 (lawyer as witness)
• NY DR 5-101(B), DR 5-102(A); EC 5-10; Definition 6 ("tribunal")

Cases:

• Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985): reference to "arbitral tribunal"
• Matter of Granite Worsted Mills, 25 N.Y.2d 451 (1969): arbitration as adjudication
• Riderman Industries Licensing v. Avmar N.V., 173 A.D.2d 401 (1st Dep't 1991): stay of arbitration pending disqualification

Other opinions cited:

• Virginia Op. 655 (1985): DR 5-102 applies in arbitration proceedings

See also

• NY State Bar Op. 635: Suing a former firm for malpractice; lawyer as witness
• NY State Bar Op. 668: Reasonable compensation of a witness

Source

• Landing page: https://nysba.org/opinion-642/