I'm a real estate development expert who testifies before zoning and planning boards. Can I be both the expert witness and the advocate for clients in the same matters if I use separate LLCs?

Plain-English summary

Before joining the Rhode Island Bar, the inquiring attorney was a real estate development practitioner who frequently testified as an expert witness before various adjudicative bodies on topics such as special use permits, variances, design review, and subdivisions. He or she wants to keep serving as an expert witness in the same real estate development matters in which he or she now represents clients as an advocate, and has set up separate limited liability companies for the two roles.

The panel concluded the attorney may not combine the roles in the same matter. It first applied Rule 3.7 (lawyer as witness), which bars a lawyer from acting as advocate at a trial in which the lawyer is likely to be a necessary witness (subject to narrow exceptions). The attorney tried to distinguish among the various bodies and procedural postures before which he or she might appear, but the panel found that all of them are "tribunals" under Rule 1.0(m) because they adjudicate parties' rights regarding real estate development, citing Town of Coventry Zoning Board of Review v. Omni Development Corp. that a zoning board's duties are quasi-judicial. So the attorney cannot appear before them as both witness and advocate without running afoul of Rule 3.7(a) (citing Op. 91-31). The panel noted in a footnote that even for uncontested-fact testimony under Rule 3.7(a)(1), the dual role would still be barred by the Rule 1.7 conflict, which is nonconsentable.

The panel then held the attorney is independently prohibited under Rule 5.7. Providing expert testimony on these real estate topics is a "law-related service" under Rule 5.7(b), and because it is intimately related to the attorney's real estate development legal practice, the Rules of Professional Conduct apply under Rule 5.7(a)(1). Comment [10] flags the conflict rules and Rule 1.6 as most implicated.

Applying Rule 1.7(a)(2), the panel found it possible that the attorney's representation of clients as an advocate (the fee, the advice and candor, the decisions on how to proceed) could be influenced by his or her personal and pecuniary interest as an expert witness in the same matters, and vice versa. These conflicts are nonconsentable even with client approval, because the attorney could not provide competent and diligent representation under either scenario (citing Op. 2025-08). The panel concluded that under Rule 5.7 the attorney cannot serve as expert witness in any matter in which he or she is an advocate, nor be an advocate in any matter in which he or she serves as expert witness.

In practice

Under this opinion, a Rhode Island lawyer may not serve as both advocate and expert witness in the same matter before a zoning, planning, or similar adjudicative body. The panel held that those bodies are tribunals under Rule 3.7, so the advocate-witness bar applies, and that expert testimony tied to the lawyer's practice is a law-related service under Rule 5.7 that triggers a nonconsentable Rule 1.7(a)(2) conflict. Using separate LLCs for the two roles does not cure the conflict.

Common questions

Q: Can I testify as an expert and also be the advocate before a zoning or planning board?

A: The panel said no. Those bodies are tribunals under Rule 1.0(m), so Rule 3.7(a) bars you from acting as advocate where you are likely to be a necessary witness, and the dual role also triggers a nonconsentable Rule 1.7 conflict.

Q: Does setting up separate LLCs for each role fix the problem?

A: No. The panel held the expert testimony is a law-related service under Rule 5.7 closely entwined with the legal practice, and the resulting Rule 1.7(a)(2) conflict is nonconsentable regardless of the LLC structure or client consent.

Q: What if my testimony is only about uncontested facts?

A: The panel said, in a footnote, that even for uncontested-fact testimony under Rule 3.7(a)(1), you would still be precluded because the dual role gives rise to a nonconsentable Rule 1.7 conflict.

Q: Why is the conflict nonconsentable?

A: The panel found the attorney could not provide competent and diligent representation where the advocacy could be influenced by the personal and pecuniary interest in the expert role, and the expert work could be affected by the advocacy duties, citing Rule 1.7, Comment [14] and Op. 2025-08.

Background and rules framework

The opinion applies Rule 3.7 (Model Rule 3.7, lawyer as witness), Rule 5.7 (Model Rule 5.7, law-related services), and Rule 1.7 (Model Rule 1.7, concurrent conflicts), read with the "tribunal" definition in Rule 1.0(m). Rule 3.7(a) bars a lawyer from acting as advocate at a trial where the lawyer is likely to be a necessary witness, with limited exceptions; Comment [6] notes the dual role may also create a Rule 1.7 or 1.9 conflict. Rule 5.7(a)(1) subjects law-related services to the Rules when not distinct from legal services, and Rule 1.7(a)(2) makes a representation conflicted where it may be materially limited by the lawyer's personal interest.

Citations and references

Rules of Professional Conduct:

• MR 3.7 (lawyer as witness)
• MR 5.7 (responsibilities regarding law-related services)
• MR 1.7 (concurrent conflicts of interest)
• RI RPC 3.7, 5.7, 1.7

Statutes:

• None cited.

Cases:

• Markham Concepts, Inc. v. Hasbro, Inc., 196 F. Supp. 3d 345 (D.R.I. 2016), Rule 1.7 is grounded primarily in the attorney's duty of loyalty
• Town of Coventry Zoning Board of Review v. Omni Development Corp., 814 A.2d 889 (R.I. 2003), a zoning board's duties are quasi-judicial
• Hassell v. Zoning Board of Review of East Providence, 108 R.I. 349, 275 A.2d 646 (1971), a zoning board is an administrative body with quasi-judicial duties

Other opinions cited:

• RI EAP Op. 91-31 (a lawyer may not appear as both witness and advocate before the same tribunal)
• RI EAP Op. 96-26 (law-related and legal services for the same client must observe the Rules, including conflicts)
• RI EAP Op. 2025-08 (dual roles as lawyer and law-related-service provider create nonconsentable conflicts in the same matter)

See also

• RI EAP Op. 91-31: A Lawyer Cannot Be Advocate and Witness at Once
• RI EAP Op. 2025-08: Lawyer as a Broker's Resident Agent
• RI EAP Op. 2002-05: Lawyer as Witness When a Partner Testifies at Trial

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP-2025-10.pdf

Original opinion text

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

Rhode Island Supreme Court
Ethics Advisory Panel Op. 2025-10
Issued August 14, 2025

FACTS

Before joining the Rhode Island Bar, the inquiring attorney served as an experienced real estate development practitioner who frequently testified as an expert witness before differing adjudicative bodies regarding various real estate development topics, including special use permits, variances, design review, and subdivisions. He or she wishes to continue to serve as such an expert witness in the same real estate development matters in which he or she now represents clients as an advocate. He or she has set up separate limited liability companies to effectuate these dual roles.

ISSUE PRESENTED

The inquiring attorney asks whether the Rules of Professional Conduct permit him or her to serve as an expert witness in the same real estate development matters in which he or she represents clients as an advocate?

OPINION

It is the Panel's opinion that the inquiring attorney may not serve as an expert witness in the same real estate development matters in which he or she represents clients as an advocate, nor may he or she represent clients as an advocate in the same real estate development matters in which he or she serves as an expert witness.

REASONING

Rule 3.7 pertains to the lawyer as witness:

(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:

(1) the testimony relates to an uncontested issue;

(2) the testimony relates to the nature and value of legal services rendered in the case; or

(3) disqualification of the lawyer would work substantial hardship on the client.

(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.

"Combining the roles of advocate and witness can prejudice the tribunal and the opposing party and can also involve a conflict of interest between the lawyer and client." Rule 3.7, Comment 1. This is because "[a] witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others," such that "[i]t may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof." Rule 3.7, Comment 2. Accordingly, the tribunal "has proper objection when the trier of fact may be confused or misled by a lawyer serving as both advocate and witness," while the opposing party "has proper objection where the combination of roles may prejudice that party's rights in the litigation." Id.

In this case, the inquiring attorney attempts to distinguish between assorted factual scenarios and among the differing bodies before which he or she may appear as an advocate/expert witness, asking whether it is proper for him or her, "on matters for which [he or she is] an expert witness, to serve as an advocate (I) in matters without opposing parties or (II) with opposing parties on (1) pre-tribunal matters, (2) during a tribunal before (a) professional staff or (b) volunteer officials, and (3) during appeals before (a) a judge, (b) professional subject-matter staff person, or (c) volunteer officials . . . ." The Panel finds that regardless of the distinctions drawn by the inquiring attorney, all the various bodies before which he or she may appear are "tribunals" within the meaning of Rule 1.0(m) of the Rules of Professional Conduct because they adjudicate, or participate in the adjudication of, a party's or parties' rights with regard to real estate development. See, e.g., Town of Coventry Zoning Board of Review v. Omni Development Corp., 814 A.2d 889, 896 (R.I. 2003) (quoting Hassell v. Zoning Board of Review of East Providence, 108 R.I. 349, 351, 275 A.2d 646, 648 (1971) and noting that "'[b]asically and fundamentally a zoning board is an administrative body whose duties are quasi-judicial'"). Thus, the Panel concludes that based on the facts provided by the inquiring attorney, he or she cannot appear before such bodies as both witness and advocate without running afoul of Rule 3.7(a). See Rhode Island Supreme Court Ethics Advisory Panel Op. 91-31.

Furthermore, even if Rule 3.7 did not apply to this matter, the Panel finds that the inquiring attorney is independently prohibited from serving as an expert witness in matters in which he or she also serves as an advocate pursuant to Rule 5.7 of the Rules of Professional Conduct. Rule 5.7 pertains to a lawyer's responsibilities when providing or engaging in law-related services:

(a) A lawyer shall be subject to the Rules of Professional Conduct with respect to the provision of law-related services, as defined in paragraph (b), if the law-related services are provided:

(1) by the lawyer in circumstances that are not distinct from the lawyer's provision of legal services to clients; or

(2) in other circumstances by an entity controlled by the lawyer individually or with others if the lawyer fails to take reasonable measures to assure that a person obtaining the law-related services knows that the services are not legal services and that the protections of the client-lawyer relationship do not exist.

(b) The term "law-related services" denotes services that might reasonably be performed in conjunction with and in substance are related to the provision of legal services, and that are not prohibited as unauthorized practice of law when provided by a nonlawyer.

"When a lawyer performs law-related services or controls an organization that does so, there exists the potential for ethical problems . . . [such as] the possibility that the person for whom the law-related services are performed fails to understand that the services may not carry with them the protections normally afforded as part of the client-lawyer relationship." Rule 5.7, Comment [1]. Rule 5.7 "identifies the circumstances in which all of the Rules of Professional Conduct apply to the provision of law-related services." Rule 5.7, Comment [2].

In this case, the inquiring attorney wishes to serve as an expert witness in the same matters in which he or she represents clients as an advocate. His or her expert witness testimony would address topics such as special use permits, variances, design review, and subdivisions. The Panel finds that the provision of such expert testimony would constitute a law-related service as contemplated by Rule 5.7(b) because such testimony is often provided in conjunction with and is related in substance to the real estate development proceedings in which the inquiring attorney seeks to represent clients as an advocate. See Rule 5.7, Comment [9] (defining "law-related service" to encompass "providing title insurance, financial planning, accounting, trust services, real estate counseling, legislative lobbying, economic analysis, social work, psychological counseling, tax preparation, and patent, medical or environmental consulting"). The Panel therefore finds that because the expert witness testimony is so intimately related to the inquiring attorney's real estate development legal practice, the inquiring attorney would be subject to the Rules of Professional Conduct when so testifying pursuant to Rule 5.7(a)(1). See Rule 5.7, Comment [3] (recognizing that "[w]hen law-related services are provided by a lawyer under circumstances that are not distinct from the lawyer's provision of legal services to clients, the lawyer in providing the law-related services must adhere to the requirements of the Rules of Professional Conduct as provided in paragraph (a)(1)"); see also Rule 5.7, Comment [8] (noting that the Rules of Professional Conduct apply in "circumstances [where] the legal and law-related services [are] so closely entwined that they cannot be distinguished from each other . . .").

Comment [10] to Rule 5.7 identifies those Rules of Professional Conduct most implicated by a lawyer's provision of law-related services to clients:

[T]he lawyer must take special care to heed the proscriptions of the Rules addressing conflict of interest (Rules 1.7 through 1.11, especially Rules 1.7(a)(2) and 1.8(a), (b) and (f)), and to scrupulously adhere to the requirements of Rule 1.6 relating to disclosure of confidential information. The promotion of the law-related services must also in all respects comply with Rules 7.1 through 7.3, dealing with advertising and solicitation.

See also Rhode Island Supreme Court Ethics Advisory Panel Op. 96-26 (observing, in matters involving business transactions between lawyers and clients regulated by Rule 1.8(a), that "the Rules of Professional Conduct relating to transacting business with clients, advertising, soliciting legal employment, conflicts of interest, and confidentiality must be observed"). Of particular relevance here is Rule 1.7, pertaining to conflicts of interest:

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or

(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing.

"Rule 1.7 is grounded primarily upon the attorney's duty of loyalty to his or her client." Markham Concepts, Inc. v. Hasbro, Inc., 196 F. Supp. 3d 345, 349 (D.R.I. 2016) (interpreting Rhode Island Rule of Professional Conduct 1.7). "Resolution of a conflict of interest problem under this Rule requires the lawyer to: 1) clearly identify the client or clients; 2) determine whether a conflict of interest exists; 3) decide whether the representation may be undertaken despite the existence of a conflict, i.e., whether the conflict is consentable; and 4) if so, consult with the clients affected under paragraph (a) and obtain their informed consent, confirmed in writing." Rule 1.7, Comment [2].

Under Rule 1.7(a)(2), a lawyer is prohibited from representing a client if there is a significant risk the representation will be materially limited by the lawyer's responsibilities to another client or third person, or by a personal interest of the lawyer. It follows that a lawyer should not allow his or her representation of a client to be materially limited by his or her provision of law-related services to that client. Nor should a lawyer providing law-related services that are subject to the Rules of Professional Conduct allow the provision of those services to be materially limited by his or her responsibilities as a lawyer. See Rhode Island Supreme Court Ethics Advisory Panel Op. 96-26 (determining that an attorney who also sold insurance was not permitted under the Rule 1.7 to sell insurance to his or her legal clients or to provide legal services to his or her insurance customers).

Here, it is possible that aspects of the inquiring attorney's representation of clients as an advocate in real estate development matters, such as the fee charged, the advice and/or candor given, and/or the decisions made on how to proceed, could be influenced by the inquiring attorney's personal and/or pecuniary interest in serving as an expert witness in the same matters—particularly because the provision of legal representation services often hinges on the expert witness testimony to be given. It is concomitantly possible that the inquiring attorney's service as an expert witness could be affected by his or her professional responsibilities in representing clients as an advocate in the same manner. Such apparent conflicts are nonconsentable, even in the face of a client's approval, written or otherwise, because it would be impossible for the inquiring attorney to provide competent and diligent representation to the client under either scenario. See Rhode Island Supreme Court Ethics Advisory Panel Op. 2025-08. The Panel thus concludes that under Rule 5.7 the inquiring attorney cannot serve as an expert witness in any matter in which he or she represents a client as an advocate, nor can he or she represent a client as an advocate in any matter in which he or she serves as an expert witness. See id.; see also Rhode Island Supreme Court Ethics Advisory Panel Op. 96-26.