Ezel / Ethics Opinions / OSB
OSB August 2005

Can a lawyer try a case when the lawyer or a partner will testify, and does it matter if the testimony helps or hurts the client?

Short answer: It depends. The opinion concludes a lawyer generally may not try a case in which the lawyer will testify for the client unless an RPC 3.7(a) exception applies, a partner may try the case if the testimony favors the client, but neither may try it once it is apparent the testimony will be adverse to the client.

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This page answers the general question as of 2005. Ezel answers yours: whether it's allowed on your facts, under the current Oregon Rules of Professional Conduct, with citations.

Currency note: this opinion is from 2005
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

Lawyer A practices in a partnership with Lawyer B, and Lawyer A may be a witness in a trial involving a firm client. The opinion answers three questions: whether A may both try the case and testify in support of the client, whether B may try the case when A's testimony supports the client, and whether A or B may try the case when A's testimony will be adverse to the client. The conclusions are no-qualified, yes, and no.

On the first question, the opinion applies Oregon RPC 3.7(a): a lawyer likely to be a witness for the client may not act as trial advocate unless the testimony concerns an uncontested issue or the nature and value of legal services, disqualification would work substantial hardship on the client, or the lawyer appears pro se. The opinion notes the Oregon Supreme Court has held that a lawyer's particular skills and a client's emotional makeup do not establish substantial hardship, and that RPC 3.7(a) bars only trying the case, not assisting in pretrial matters.

On the second question, the opinion applies RPC 3.7(b): another lawyer in the firm may act as advocate when a firm lawyer is likely to testify for the client, so Lawyer B may try the case. On the third question, the opinion applies RPC 3.7(c): when it becomes apparent that the lawyer's or a firm member's testimony is or may be prejudicial to the client, neither A nor B may try the case and they must withdraw, and the opinion states this conflict is not waivable by the client.

In practice

The opinion holds that, under the Oregon rules as they stood at the time, the advocate-witness restriction in RPC 3.7 turns on who will testify and whether the testimony helps or hurts the client. The opinion treats favorable testimony by a partner as permitting that partner to try the case, but treats testimony that is or may be prejudicial to the client as requiring the whole firm to step aside, a conflict it describes as not waivable.

Common questions

Q: Can a lawyer both try a case and testify for the client?

A: Generally no. The opinion concludes RPC 3.7(a) bars it unless the testimony is on an uncontested issue or about legal fees, disqualification would cause substantial hardship, or the lawyer is pro se.

Q: Can the lawyer's partner try the case instead?

A: Yes, if the testimony favors the client. The opinion concludes RPC 3.7(b) lets another firm lawyer act as advocate when a firm lawyer is likely to testify on the client's behalf.

Q: What if the lawyer's testimony would hurt the client?

A: Then neither the lawyer nor a firm member may try the case. The opinion concludes RPC 3.7(c) requires withdrawal once it is apparent the testimony is or may be prejudicial, and that this conflict is not waivable.

Background and rules framework

The opinion interprets Oregon RPC 3.7 (lawyer as witness), which tracks Model Rule 3.7. It addresses the rule's three branches: the advocate-witness bar in 3.7(a) with its exceptions, the firm-lawyer allowance in 3.7(b), and the adverse-testimony withdrawal requirement in 3.7(c).

Citations and references

Rules of Professional Conduct:

  • Oregon RPC 3.7 / Model Rule 3.7 (lawyer as witness)

Cases:

  • In re Lathen, 294 Or 157, 654 P2d 1110 (1982)
  • In re Kluge, 335 Or 326, 66 P3d 492 (2003)

See also

Source

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