Ezel / Ethics Opinions / SBAND

Could a city’s lawyer continue as trial advocate if likely to be a necessary witness?

Short answer Assuming the lawyer was likely to be a necessary witness, the committee said Rule 3.7 generally barred acting as trial advocate unless an exception applied. It lacked enough facts to decide whether the legal-fee or substantial-hardship exceptions, or a Rule 1.7 conflict, applied.
Bar
SBAND
Issued
January 28, 1988
Source
View Original PDF

Apply this to your situation

This page answers the general question as of 1988. Ask about yours and see what the current North Dakota Rules of Professional Conduct say for your facts, with citations.

How much weight this carries: Under North Dakota Rule for Lawyer Discipline 1.2(B), a lawyer who acts in good faith and in reasonable reliance on a written opinion of the association's ethics committee is not subject to sanction for the conduct the opinion addresses. Source.
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

The city counsel asked whether being called as a witness in litigation required withdrawal. The committee assumed for its analysis that the lawyer was likely to be a necessary witness and said Rule 3.7(a) generally prohibited acting as trial advocate in that position.

The committee said the uncontested-issue exception appeared unavailable because the expected testimony concerned a contested issue. It could not tell whether testimony about the nature and value of legal services or the substantial-hardship exception applied. It also said another lawyer in the firm might act as advocate under Rule 3.7(b), subject to a conflict analysis, and lacked facts to decide Rule 1.7.

Currency note

This opinion was issued in 1988, before North Dakota's 2006 revisions to its Rules of Professional Conduct. The later North Dakota Opinion 06-05 states: “On August 1, 2006, material changes to N.D.R. Prof. Conduct 1.10(a) will take effect.” 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 Treat this page as historical context, not current guidance.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.

Common questions

Q: Did the committee direct the city lawyer to withdraw?

A: It did not reach an unconditional withdrawal decision. It described Rule 3.7’s general prohibition and left two exceptions unresolved for lack of facts.

Q: Could another firm lawyer try the case if a colleague testified?

A: The committee said Rule 3.7(b) could apply, but the firm would then need to consider Rule 1.7; it did not decide whether a conflict existed.

Background and rules framework

The advisory letter quotes Rule 3.7(a)’s three exceptions and Rule 3.7(b)’s treatment of another lawyer in the firm. It also discusses Rule 1.7 conflict analysis and states that Rule 1.10 does not apply to that Rule 3.7(b) inquiry.

Citations and references

Rules of Professional Conduct:

  • Rule 3.7(a)–(b), concerning a lawyer acting as advocate and witness.
  • Rule 1.7, discussed for a possible conflict and informed consent.
  • Rule 1.10, discussed as inapplicable to the stated Rule 3.7(b) inquiry.

See also

Source

Original opinion text

Full opinion text unavailable from the official source; see the linked source above for the complete text.

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