Can a law director or assistant law director try a case in which another lawyer from the same office will testify as a witness for the city?

Plain-English summary

The Board addressed whether a law director or assistant law director may act as an advocate at a trial where another lawyer in the same office will testify as a witness for the city. The opinion treats this as a fact-specific determination and notes that Prof.Cond.R. 3.7, cmt. [8] recognizes a difference between salaried lawyers in a government agency and partners or associates in a private firm.

Under Prof.Cond.R. 3.7(a) and (c), a government lawyer may act as an advocate when a colleague testifies if the testimony relates to an uncontested issue, relates to the nature and value of legal services, if disqualification would work a substantial hardship on the client, or if the testimony is permitted by common law. The first two situations rarely require extensive analysis. The difficult question is substantial hardship.

For substantial hardship, the opinion explains that a necessary witness is one whose testimony must be admissible and unobtainable through other witnesses (citing Champoir v. Champoir), and that "substantial" means a matter of real importance or great consequence (Prof.Cond.R. 1.0(m)). The analysis balances the interests of the client, the tribunal, and the opposing party. Relevant factors include the nature of the case, the importance and probable tenor of the testimony, the likelihood it will conflict with other witnesses, whether it is duplicative, and the weight of other evidence. The opinion notes courts have held that mere financial hardship or long-term familiarity is not enough.

On the common-law exception, the opinion relies on State v. Coleman, where the Ohio Supreme Court allowed a prosecutor to try a complex case in which an office member testified, provided the lawyer-witness was effectively screened from the matter. Using a domestic-violence intake example, the opinion describes how an intake prosecutor who took incriminating statements could become a necessary witness, in which case the advocating lawyer must ensure the witness is not involved in the prosecution and is effectively screened.

In practice

Under this opinion, a law director, assistant law director, prosecutor, or village solicitor cannot assume the firm-style rule of Prof.Cond.R. 3.7 applies automatically to a government office; the analysis turns on which 3.7(a)/(c) exception fits. The opinion holds that the substantial-hardship path requires the advocate first to determine that the colleague's testimony is necessary (admissible and unobtainable elsewhere), then to weigh factors such as the impracticality of outside counsel, the complexity of the case, the importance and tenor of the testimony, conflict with other witnesses, and the weight of other evidence. Per the opinion, where the common-law exception is relied on, the lawyer-witness must be effectively screened from the prosecution. The Board recommends applying the opinion to all similarly situated government offices, including prosecutors and village solicitors.

Common questions

Q: Does the lawyer-as-witness rule apply the same way to a government office as to a private firm?

A: Not entirely. The opinion explains that Prof.Cond.R. 3.7, cmt. [8] recognizes a difference between salaried government lawyers and private-firm partners and associates, so a government lawyer may try a case where a colleague testifies in the situations the rule allows.

Q: When can disqualification be avoided on substantial-hardship grounds?

A: The opinion concludes the advocate must first show the testimony is necessary (admissible and unobtainable elsewhere), then weigh factors including the impracticality of outside counsel, case complexity, the importance and tenor of the testimony, and conflict with other witnesses. Mere financial hardship or familiarity is not enough.

Q: Can the office colleague testify if the matter is contested and significant?

A: The opinion concludes that, relying on State v. Coleman, common law may permit it in extraordinary circumstances if the lawyer-witness is effectively screened from the matter and not involved in the prosecution.

Background and rules framework

The opinion interprets Ohio Prof.Cond.R. 3.7 (lawyer as witness; Model Rule 3.7), particularly subsections (a) and (c) and comments [4] and [8], and applies the definition of "substantial" in Prof.Cond.R. 1.0(m). It addresses government lawyers specifically and was issued to all similarly situated government offices. The opinion withdraws Adv. Op. 2003-5.

Citations and references

Rules of Professional Conduct:

• Ohio Prof.Cond.R. 3.7(a), (c) and cmts. [4], [8] (Model Rule 3.7)
• Ohio Prof.Cond.R. 1.0(m) (definition of "substantial")

Cases:

• Champoir v. Champoir, 2019-Ohio-2235, 138 N.E.3d 530, defining a necessary witness under Rule 3.7
• Reo v. University Hospitals Health System, 2019-Ohio-1411, 131 N.E.3d 986, balancing of interests
• Popa Land Co. v. Fragnoli, 2009-Ohio-1299, financial hardship insufficient for the exception
• State v. Coleman, 45 Ohio St.3d 298, 544 N.E.2d 622 (1989), screened office member testifying in a complex prosecution

Other opinions cited:

• Ohio BPC Adv. Op. 2003-5 (withdrawn by this opinion)

See also

• CA Bar Op. 1993-133: Representing the Opposing Party in a Malpractice Action; Lawyer as Witness
• Ohio BPC Op. 2019-009: County Prosecutor Representation of Adverse Clients
• LA County Bar Op. 453: Criminal Defense by a Member of a City Prosecutor Firm

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2020/06/Adv.-Op.-2020-05-Final.pdf

Original opinion text

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

OPINION 2020-05
Issued June 12, 2020
Withdraws Adv. Op. 2003-5
Law Director Acting as an Advocate in a Trial in Which Another Lawyer in the Same
Office is a Witness

SYLLABUS: A law director or assistant law director may act as an advocate in a trial in
which another lawyer in the office will testify as a witness only when the testimony is
permitted by common law, if the disqualification of the advocate would work a
substantial hardship on the city, or when the testimony relates to an uncontested issue or
the nature and value of legal services.

This nonbinding advisory opinion is issued by the Ohio Board of Professional Conduct
in response to a prospective or hypothetical question regarding the application of
ethics rules applicable to Ohio judges and lawyers. The Ohio Board of Professional
Conduct is solely responsible for the content of this advisory opinion, and the advice
contained in this opinion does not reflect and should not be construed as reflecting the
opinion of the Supreme Court of Ohio. Questions regarding this advisory opinion
should be directed to the staff of the Ohio Board of Professional Conduct.
 65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
Telephone: 614.387.9370 Fax: 614.387.9379
www.bpc.ohio.gov

HON. JOHN W. WISE RICHARD A. DOVE
CHAIR DIRECTOR
PATRICIA A. WISE D. ALLAN ASBURY
VICE- CHAIR SENIOR COUNSEL
KRISTI R. MCANAUL
COUNSEL

                                OPINION 2020-05
                               Issued June 12, 2020
                             Withdraws Adv. Op. 2003-5

Law Director Acting as an Advocate in a Trial in Which Another Lawyer in the Same
Office is a Witness
SYLLABUS: A law director or assistant law director may act as an advocate in a trial in
which another lawyer in the office will testify as a witness only when the testimony
is permitted by common law, if the disqualification of the advocate would work
a substantial hardship on the city, or when the testimony relates to an uncontested issue
or the nature and value of legal services.

QUESTION PRESENTED: May a law director or an assistant law director act as
an advocate in a trial in which another lawyer in the law director’s office will testify
as a witness on behalf of the city?

APPLICABLE RULES: Prof.Cond.R. 3.7

OPINION: Whether a government lawyer may act as an advocate in a trial in which
another government lawyer will testify as a witness is a fact-specific determination. The
Ohio Rules of Professional Conduct recognize there is a difference between
relationships among salaried lawyers in a government agency and relationships among
partners and associates of a law firm. Prof.Cond.R. 3.7. cmt. [8]. Thus, a
government lawyer is permitted to testify or offer the testimony of another lawyer
in the same government agency when the testimony relates to an uncontested issue,
relates to the nature and value of legal services rendered in the case, if the
disqualification of the lawyer would work a
Op. 2020-05 2

substantial hardship on the client, or if the testimony is permitted by common law.
Prof.Cond.R. 3.7(a),(c). cmt. [8].

   The first two instances in which a government lawyer may testify as a witness or

call another government lawyer to testify as a witness in a case do not require extensive
analysis. First, whether the government witness lawyer’s intended testimony in a case
relates to an uncontested issue is easily determined at the outset. Second, it is highly
unlikely that another lawyer employed in an advocating lawyer’s government entity
would be called to testify in a case about the nature and value of legal services rendered.

   The more difficult analysis is whether the disqualification of a government lawyer,

due to the testimony of a necessary government lawyer witness, would work a
substantial hardship on the lawyer’s client. See Prof.Cond.R. 3.7(a)(3). “A necessary
witness under Prof.Cond.R. 3.7 is one whose testimony must be admissible and
unobtainable through other trial witnesses.” Champoir v. Champior, 2019-Ohio-2235, ¶17,
138 N.E.3d 530 (citing Gonzalez-Estrada v. Glancy, 2017-Ohio-538, 85 N.E.3d 273,
(additional citations omitted)). The term “substantial,” when used in reference to
measuring the degree or extent of something, is defined as a matter of real importance or
great consequence. Prof.Cond.R. 1.0(m). The analysis under the rule of what constitutes
substantial hardship contemplates a balancing of interests of the client and those of the
tribunal and the opposing party. Prof.Cond.R. 3.7, cmt. [4]; Reo v. University Hospitals
Health System, 2019-Ohio-1411, 131 N.E.3d 986.

   A law director faced with this situation may consider many variables in

determining if the lawyer should be disqualified due to the expected necessary testimony
of a government lawyer witness.1 Relevant considerations may include the nature of the
case, the importance and probable tenor of the lawyer witness’ testimony, the probability
that the testimony will conflict with that of other witnesses, whether the lawyer witness’
testimony is duplicative, and the weight of other available evidence. See Prof.Cond.R.
3.7, cmt.[4]. The government lawyer should bear in mind that courts have previously
indicated that mere financial hardship or long-term familiarity is not enough to meet the
substantial hardship exception. Popa Land Co. v. Fragnoli, 2009-Ohio-1299, ¶21, 2009 WL
735969 (citing 155 N. High, Ltd. v. Cincinnati Ins. Co., 1995-Ohio-85, 650 N.E.2d 869 and

1The Board recommends application of this opinion to all similarly situated government lawyers,
including prosecutor’s offices and village solicitor’s offices.
Op. 2020-05 3

State Employment Rel. Bd. v. Springfield Local School District Bd. of Edu., 104 Ohio App.3d
191, 661 N.E.2d 278 (9th Dist. 1995)).

   Common law recognizes that a prosecutor in extraordinary circumstances may act

as an advocate in a trial in which another member of the office will testify as a witness,
so long as the lawyer-witness is effectively screened from the matter. State v. Coleman, 45
Ohio St.3d 298, 544 N.E.2d 622 (1989). In Coleman, a death penalty case, the Supreme
Court noted, “[w]e recognize that a prosecuting attorney should avoid being a witness in
a criminal prosecution, but where it is a complex proceeding where substitution of
counsel is impractical, and where the attorney so testifying is not engaged in the active
trial of the cause and it is the only testimony available, such testimony is admissible and
not a violation of DR 5-102 [Prof.Cond.R. 3.7].” Id. at 302. Thus, in certain situations it is
possible that common law may permit a law director witness or prosecutor witness to
testify in a case if he or she is effectively screened from the advocating government
lawyer.

   By way of example, an individual accused of domestic violence may attempt to

discuss the matter with an assistant law director or intake prosecutor, and, in the course
of such discussion, make incriminating statements. That lawyer-employee may then
become a necessary witness in the prosecution of the accused. In analyzing whether or
not the law director or prosecutor may act as an advocate in the trial where another
government lawyer witness is expected to testify, the advocating government lawyer
must ensure the employee-witness is not involved in the prosecution of the case and is
effectively screened. The advocating lawyer should further examine whether the
testimony is necessary, admissible, or obtainable elsewhere. Additional factors to assess
include whether the assignment of outside counsel is impractical, the complexity of the
case, whether the testimony is of great importance, whether the testimony will conflict
with that of other witnesses, and the weight of other evidence on the case. In a civil
context, law directors or prosecutors faced with similar questions about their ability to
act as an advocate in a trial where another government lawyer witness in the same office
will testify, may use the same factors to analyze the hardship of lawyer disqualification
to their client.

CONCLUSION: The determination of whether a law director or assistant law director
may act as an advocate in a trial in which another lawyer in the same office will testify as
a witness is a fact-based inquiry. In limited situations, a law director or assistant law
Op. 2020-05 4

director may act as an advocate at a trial when another lawyer in the same office will
testify as a witness in the case. Those limited situations include when the witness’
testimony is permitted by common law, when the testimony is related to an uncontested
matter or the nature and value of legal services rendered, or when disqualifying the law
director or assistant law director would work a substantial hardship on the client city.
The law director or assistant law director must ensure the employee-witness is not
involved in the prosecution of the case and is effectively screened. In making the
substantial hardship determination, the law director or assistant law director must first
consider whether the testimony is necessary, with an analysis of the admissibility of the
testimony and whether the testimony is obtainable elsewhere. The law director or
assistant law director may then consider multiple variables such as whether the
assignment of outside counsel is impractical, the nature and complexity of the case, the
importance and probable tenor of the testimony, the probability that the testimony will
conflict with that of other witnesses, whether the testimony is duplicative, and the weight
of other available evidence.