Opposing counsel says they'll call both partners in our two-lawyer firm as witnesses about a settlement agreement. Can the partner whose role was limited still try the case?

Plain-English summary

Attorneys A and B are the sole members of a firm and represent the defendant in a civil action in Superior Court. Attorney A represented the defendant in arbitration and later in settlement negotiations, which produced a written settlement agreement signed by the attorneys. That settlement agreement is now at issue, and opposing counsel notified A and B that it intends to call both of them as witnesses at trial. A and B asked whether Attorney B is disqualified from representing the defendant at trial, where B's participation was limited and the facts B might testify to are unlikely to be crucial or in dispute.

The opinion applies Rule 3.7, "Lawyer as Witness." Rule 3.7(a) bars a lawyer from acting as advocate at a trial where the lawyer is likely to be a necessary witness, subject to exceptions. Rule 3.7(b) provides that 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 by Rule 1.7 or Rule 1.9. The opinion highlights paragraph (b) as a specific exception permitting a lawyer to act as advocate even though another lawyer in the firm is likely to be called as a witness.

On the facts as stated, the opinion concludes that Attorney B is not precluded from acting as the defendant's advocate at trial, because B is not likely to be a necessary witness and the potential testimony will not relate to contested issues.

In practice

Under this opinion, the disqualification analysis for B turns on whether B is a "necessary" witness on contested facts. Because B's role was limited and the anticipated testimony is neither crucial nor disputed, Rule 3.7(a) does not bar B from serving as advocate. The opinion also points to Rule 3.7(b), under which one firm lawyer may try the case even if another firm lawyer is a likely witness, absent a Rule 1.7 or 1.9 preclusion.

Common questions

Q: Does opposing counsel's plan to call a lawyer as a witness automatically disqualify that lawyer?

A: No. The opinion holds Attorney B is not precluded because B is not likely to be a necessary witness and the testimony will not relate to contested issues.

Q: Can one partner try the case if the other partner will testify?

A: The opinion notes Rule 3.7(b) permits a lawyer to act as advocate even though another lawyer in the firm is likely to be a witness, unless Rule 1.7 or Rule 1.9 precludes it.

Q: What makes a lawyer a "necessary" witness under Rule 3.7?

A: The opinion treats testimony that is unlikely to be crucial or on a contested issue as not making the lawyer a necessary witness, so the advocate bar does not apply.

Background and rules framework

The opinion interprets Rhode Island Rule of Professional Conduct 3.7, "Lawyer as Witness," the analog of Model Rule 3.7. Rule 3.7(a) bars a lawyer likely to be a necessary witness from acting as advocate, subject to the uncontested-issue, legal-services, and substantial-hardship exceptions; Rule 3.7(b) allows a lawyer to act as advocate when another firm lawyer is likely to be a witness unless Rule 1.7 or Rule 1.9 precludes it.

Citations and references

Rules of Professional Conduct:

• MR 3.7 / RI RPC 3.7 (lawyer as witness; advocate bar and the firm-lawyer exception in 3.7(b))

See also

• RI EAP Opinion 93-40: executor-attorney as advocate and witness; substantial hardship under 3.7
• RI EAP Opinion 2025-10: may not be both advocate and expert witness in the same matter

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%2093-46.pdf

Original opinion text

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

(FINAL)
ETHICS ADVISORY PANEL
OPINION #93-46, REQUEST #379
Issued July 28, 1993

Attorneys A and B are the sole members of a firm and represent a client (defendant) in a civil action pending in the Superior Court. Attorney A represented defendant in arbitration, and later in settlement negotiations. As a result of the settlement negotiations, an agreement was reached between the parties. The terms of the settlement agreement were memorialized in a written agreement that was signed by the attorneys. The settlement agreement is now at issue. Attorneys A and B have been notified by opposing counsel that they intend to call both Attorneys A and B as witnesses at trial.

Attorneys A and B request the Panel's advice with regard to whether Attorney B is disqualified from representing defendant at trial where Attorney B's participation in the matter was limited, and the facts to which Attorney B might be called upon to testify are unlikely to be crucial or in dispute.

Rule 3.7 governs this inquiry and provides as follows:

Rule 3.7. Lawyer as Witness.

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

(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.

Paragraph (b) contains a specific exception permitting a lawyer to act as an advocate even though another lawyer in his/her firm is likely to be called as a witness.

Given the facts as stated by Attorneys A and B, the Panel is of the opinion that Attorney B is not precluded from acting as defendant's advocate at trial. Attorney B is not likely to be a necessary witness and the potential testimony will not relate to contested issues.