May a Vermont state investigator who is a lawyer testify and also advocate at the same administrative hearing?
Apply this to your situation
This page answers the general question as of 2014. Ask about yours and see what the current Vermont Rules of Professional Conduct say for your facts, with citations.
Plain-English summary
A state department investigator who was also a licensed lawyer asked whether they could testify at an administrative hearing and present the department's case instead of department counsel. The opinion applied Vermont Rule 3.7, which restricts a lawyer from acting as advocate where the lawyer is likely to be a necessary witness. It read the rule's reference to a trial to include an administrative hearing because Rule 1.0(m) defines a tribunal to include an administrative agency acting in an adjudicative capacity.
The committee said the investigator is a necessary witness if the testimony concerns more than a ministerial issue and cannot be supplied by another witness. If the lawyer is necessary, the lawyer cannot also advocate in that proceeding unless the testimony concerns an uncontested issue or another Rule 3.7 exception applies. The committee considered a substantial hardship to the state unlikely given the government's ability to plan and allocate resources.
The opinion did not resolve privilege or conflict questions concerning another lawyer from the same agency. It said the investigator would need to evaluate Rules 1.7 and 1.9 if another agency lawyer serves as advocate while the investigator testifies.
In practice
Under the opinion's facts, a state investigator's role as advocate depends on whether the investigator is a necessary witness and whether the testimony is contested. The committee treated uncontested testimony as a possible exception and did not find a routine state staffing hardship sufficient on the facts described.
Common questions
Q: Does Rule 3.7 apply at an administrative hearing?
A: The opinion says yes, relying on the definition of tribunal in Vermont Rule 1.0(m).
Q: When is the investigator a necessary witness?
A: The opinion says the lawyer is necessary where the testimony is not merely ministerial and another witness cannot provide it. It quotes a case defining necessary testimony as relevant, material, and unobtainable elsewhere.
Q: Can the investigator advocate if the testimony is uncontested?
A: The committee identifies uncontested testimony as an exception under Rule 3.7(a)(1).
Background and rules framework
The opinion applies Vermont Rule 3.7(a)'s advocate and witness restriction and its exceptions for uncontested testimony, testimony about legal services, and substantial hardship. It also discusses Rule 3.7(b) and notes that conflicts and privilege involving agency colleagues were outside the question presented.
Citations and references
Vermont Rules of Professional Conduct:
- Rules 1.0(m), 1.7, 1.9, and 3.7
Cases:
- World Youth Day, Inc. v. Famous Artists Merchandising Exch., Inc., 866 F.Supp. 1297, 1301 (D.Colo.1994), necessary witness definition
- In re Disciplinary Proceeding Against Pfefer, 344 P.3d 1200, 1203-04 (Wash. 2015), Rule 3.7 in administrative proceedings
See also
Source
- Landing page: VBA witness opinions
- Original PDF: Vermont Advisory Opinion 14-01
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