In a debt-collection case, can the plaintiff's lawyer be sworn in and testify, or submit a personal affidavit, to prove the debt and get a judgment for the client?

Plain-English summary

The opinion addresses a debt-collection practice in General District Court. A retained lawyer (not in-house counsel) appears for a plaintiff who is not personally present, with the lawyer's knowledge of the debt based on what the client relayed and the lawyer's pre-filing investigation. To obtain judgment, the lawyer either is sworn in and testifies under oath that the debt is owed and in what amount, or submits an affidavit under Code of Virginia §8.01-28, signed by the lawyer or a firm member, attesting to the debt. The controlling rule is Rule 3.7(a)(1), the lawyer-as-witness rule.

The committee first treats a threshold question, whether a lawyer who submits an affidavit thereby becomes a necessary witness under Rule 3.7, noting that jurisdictions vary. On the facts, where the lawyer's affidavit is the only evidence on the only substantive issue (the indebtedness) and the lawyer asks the court to enter judgment on that affidavit, the committee concludes the lawyer is acting both as witness and advocate and has become a necessary witness within the meaning of Rule 3.7(a). Because the issue was inextricably linked to a legal one, the committee sought an Attorney General's opinion, which concluded that the plaintiff's lawyer is an "agent" under §8.01-28 and may sign and file an affidavit stating the claim even without firsthand knowledge of the amount.

The committee then explains that lawful conduct can still be unethical, citing Gunter v. Virginia State Bar, and that the statute permitting the lawyer to act as agent does not displace Rule 3.7. On the hypothetical's facts, where the judge does not treat the matter as uncontested simply because the defendant fails to appear, Rule 3.7(a)(1) does not allow the lawyer to become a witness, by testimony or affidavit, on an essential element of the case (the existence and amount of the debt). The lawyer may act as agent and advocate, but cannot become a witness to a material fact unless the court finds the matter uncontested on grounds other than the defendant's non-appearance.

In practice

Under the Virginia rule as it stood when the opinion issued, the committee holds that a lawyer who submits a personal affidavit as the sole proof of the debt becomes a necessary witness under Rule 3.7(a), acting as both witness and advocate. It holds that, while §8.01-28 (as read by the Attorney General) lets the lawyer sign the affidavit as the plaintiff's agent, that statutory authority does not override Rule 3.7, because lawful conduct can still be unethical. The opinion holds that where the court does not treat the debt as uncontested merely because the defendant fails to appear, Rule 3.7(a)(1) bars the lawyer from testifying or swearing an affidavit on the existence and amount of the debt, an essential element; the lawyer may still act as agent and advocate, and may give such evidence only if the court finds the matter uncontested on grounds other than non-appearance.

Common questions

Q: Does a lawyer who files a personal affidavit become a "necessary witness" under Rule 3.7?

A: On these facts, yes. The opinion concludes that when the lawyer's affidavit is the only evidence on the only substantive issue (the debt) and the lawyer seeks judgment on it, the lawyer is acting as both witness and advocate and is a necessary witness under Rule 3.7(a).

Q: If a statute lets the lawyer sign the affidavit as the client's agent, doesn't that settle it?

A: No. The opinion concludes that although the Attorney General read §8.01-28 to let the plaintiff's lawyer sign as agent, lawful conduct can still be unethical (citing Gunter), so the statute does not displace Rule 3.7.

Q: Can the lawyer testify or swear the affidavit when the defendant simply does not show up?

A: Not by itself. The opinion concludes that where the court does not treat the matter as uncontested based solely on the defendant's failure to appear, Rule 3.7(a)(1) bars the lawyer from giving testimony or an affidavit on the existence and amount of the debt; that is allowed only if the court finds the matter uncontested on other grounds.

Background and rules framework

The opinion interprets Rule 3.7(a)(1) of the Virginia Rules of Professional Conduct (Model Rule 3.7), which bars a lawyer from acting as advocate in an adversarial proceeding in which the lawyer is likely to be a necessary witness, except where the testimony relates to an uncontested issue. It situates the rule against Code of Virginia §8.01-28 (affidavit of debt by the plaintiff or an agent) and an Attorney General's opinion reading the lawyer as an "agent" under that statute, and against Gunter v. Virginia State Bar on the point that lawful conduct may still violate the professional rules.

Citations and references

Rules of Professional Conduct:

• Model Rule 3.7 / Va. Rule 3.7(a)(1) (lawyer as witness; uncontested-issue exception)

Statutes:

• Code of Virginia §8.01-28 (affidavit establishing a claim for debt; plaintiff or agent)

Cases:

• Gunter v. Virginia State Bar, 238 Va. 617, 385 S.E.2d 597 (1989), lawful conduct may still be unethical
• Int'l Res. Ventures v. Diamond Mining, 934 S.W.2d 218 (Ark. 1996), Rule 3.7 applies to affidavit evidence
• Zurich Ins. Co. v. Knotts, 52 S.W.3d 555 (Ky. 2001), affidavit did not automatically make the lawyer a necessary witness

See also

• Alabama Ethics Op. 1991-19: Rule 3.7 Lawyer as a Witness
• VSB Ethics Op. 1890: Communications With Represented Persons

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1849.pdf

Original opinion text

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

Committee Opinion
September 29, 2010
LEGAL ETHICS OPINION 1849

THE ETHICAL ISSUES OF LAWYERS
TESTIFYING UNDER OATH IN COURT TO
DEBTS OWED TO THE CLIENT.

In this hypothetical, on the general return docket for civil cases in General District Court, a
lawyer appears on behalf of his client, who is the plaintiff in the case. The lawyer or his firm is
retained and the lawyer is not employed by the client as in-house counsel. The lawyer’s
knowledge of the case is typically based solely on what the client has relayed to the lawyer and
what the lawyer has determined by his pre-filing investigation of the case. The plaintiff is not
personally present, and the initial pleading in the case (warrant in debt, unlawful detainer, etc.) is
signed either by the plaintiff personally or by the lawyer as attorney for the client. The defendant
fails to appear. The lawyer raises his hand to be sworn in and subsequently testifies under oath
as to the amount of the debt and that the debt is still owed.
In the alternative, the lawyer submits an affidavit pursuant to Code of Virginia §8.01-28 that is
notarized as required and signed by the lawyer himself or by a member of his firm, attesting to
the debt owed by the defendant. The defendant either fails to appear and is in default, or appears
but is unsure what the alleged debt is for or of the amount owed, and is, therefore, unable to deny
under oath that he owes the debt. The lawyer will ask for judgment based on the affidavit. In
cases where the defendant does not appear, the judge cannot determine whether the debt is
uncontested based solely on that fact. 1
QUESTIONS REGARDING ETHICAL CONDUCT
1. Is it permissible for the lawyer to raise his hand to be sworn in by the Court and swear
or affirm under oath that the debt is owed to his client and obtain a judgment in favor of
his client?
2. In the alternative, may the lawyer obtain a judgment in favor of his client on an
affidavit to which he or a member of his firm has sworn on the client’s behalf?
APPLICABLE RULES
The appropriate and controlling rule relative to this hypothetical is Rule 3.7(a)(1). 2

1

The Committee notes that when this draft opinion was published for comment, some of the commentators
criticized the factual predicate set out in the hypothetical that the judge cannot determine whether the debt is
uncontested solely on the basis that the debtor-defendant fails to appear. First, this is not a statement or conclusion
of the Committee. It is the requesting party’s statement or observation based upon her experience with debtors in
collection cases. Second, the requestor draws a distinction between (i) the debtor’s failure to appear, which places
the debtor in default and (ii) the court reaching the conclusion that the underlying debt is “uncontested” for purposes
of Rule 3.7(a) simply because the debtor—for whatever reason (i.e., lack of notice, illness, inability to obtain leave
from work, etc)—fails to appear in court. These, of course, are factual and legal issues the Committee cannot
decide. However, the Committee’s opinion is based, as it must be, upon the facts and reasonable inferences drawn
therefrom as presented by the requestor.

2

Rule 3.7

Lawyer As Witness

Committee Opinion
September 29, 2010

ANALYSIS OF THE QUESTIONS PRESENTED
The initial analysis of the questions rests upon the inevitability of whether the defendant
appears in court to defend or deny the debt. Clearly, if the defendant makes an appearance in the
case and either denies or contests the debt as stated in the warrant or detainer, the lawyer cannot
personally affirm the debt or personally testify as to the debt owed. The underlying analysis of
the questions revolves around the legal analysis of admissible evidence, testimonial evidence,
and hearsay, which this Committee cannot address because these are legal issues that are beyond
its purview.
A threshold inquiry is whether an attorney who submits an affidavit in a matter thereby
becomes a necessary witness for purposes of Rule 3.7. Jurisdictions vary on this issue. 3 In the
facts presented, the plaintiff’s attorney submits an affidavit on the only substantive issue in the
case—the indebtedness of the defendant—and without any other witness in the court to testify
asks the court to enter judgment for the plaintiff on his affidavit. In this capacity, the lawyer is
acting both as witness and advocate. The Committee opines that by submitting the affidavit
under these circumstances the attorney has become a necessary witness within the meaning of
Rule 3.7(a).
Given that the ethics issue is inextricably linked to a legal issue, this Committee sought an
Attorney General’s opinion as to whether a plaintiff’s lawyer in a debt collection case, is
authorized, pursuant to Code of Va. §8.01-28, to serve as agent for the plaintiff and sign and file
an affidavit stating the amount of the plaintiff’s claim even though that lawyer does not have first
hand knowledge of the amount owed. The Attorney General’s office opined that a plaintiff’s
lawyer in a debt collection case is an “agent,” as that term is used in §8.01-28, and may sign and
file an affidavit stating the plaintiff’s claim. 4 While this Committee does not give legal advice or
analysis, the Committee relies upon the Attorney General’s opinion that legally a plaintiff’s
lawyer may sign as agent for the client when filing a warrant in debt or affidavit in a debt
collection matter.

(a) A lawyer shall not act as an advocate in an adversarial proceeding in which the lawyer is likely to be a
necessary witness except where:
(1) the testimony relates to an uncontested issue;

3

Compare Int’l Res, Ventures v. Diamond Mining, 934 S.W.2d 218 (Ark. 1996)(“Rule 3.7 is applicable to a lawyer
giving evidence by affidavit as well as by testimony in open court.”); and Mauze v. Curry, 861 S.W.2d 869 (Tex.
1993)(lawyer in medical malpractice case became necessary fact witness by submitting affidavit opining that
defendant was negligent), with Zurich Ins. Co. v. Knotts, 52 S.W.3d 555 (Ky. 2001)(lawyer who files personal
affidavit in opposition to motion for summary judgment does not automatically become necessary witness subject to
disqualification) and Bank One Lima N.A. v. Altenburger, 616 N.E.2d 954 (Ohio Ct. App. 1992)(disqualification
reversed; lawyer did not become necessary witness regarding substantive matters by submitting affidavit stating
only that documents attached to it from him were received by opposing counsel).
4

Letter from William C. Mims, Acting Att’y Gen. of Virginia, to Karen A. Gould, Executive Director, Virginia
State Bar (February 25, 2009) (on file with the Virginia State Bar).

Committee Opinion
September 29, 2010
As Code of Virginia §8.01-28 allows an agent of the plaintiff to sign and file an affidavit
affirming the debt and the Attorney General of Virginia has opined that the attorney for the
plaintiff may sign the affidavit as agent of the plaintiff, the next question is whether the statute,
as interpreted by the Attorney General of Virginia, precludes the application of Rule 3.7(a) or
any other Rule of Professional Conduct to the facts presented. Conduct may be lawful but
nevertheless unethical under rules regulating the legal profession. Gunter v. Virginia State Bar,
238 Va. 617, 621, 385 S.E.2d 597 (1989) (“The lowest common denominator, binding lawyers
and laymen alike, is the statute and common law. A higher standard is imposed on lawyers by
the Code of Professional Responsibility, many parts of which proscribe conduct which would be
lawful if done by laymen.”)
Under the facts of the hypothetical, the judge in these cases decides not to treat these matters as
uncontested because the defendant does not appear. Rule 3.7(a)(1) would not allow the lawyer
to become a witness either by testimony or affidavit because the lawyer would be testifying as to
an essential element of the case, that a debt exists and the amount of the debt. While the lawyer
can act as agent and can advocate the client’s case, the lawyer cannot become a witness to a
material fact, unless the court finds the matter to be uncontested based upon factors other than
the defendant’s failure to appear.
This opinion is advisory only and not binding on any court or tribunal.