WISBAR April 7, 2025

Can a Wisconsin lawyer who will be a necessary witness also serve as the advocate at the same trial?

Short answer: Generally no. The opinion concludes that under SCR 20:3.7 a lawyer who is likely to be a necessary witness may not act as advocate at the same trial unless an exception applies, and because the rule protects the integrity of the justice system rather than only the parties, the client cannot consent around it. If the lawyer's testimony would be adverse to a current or former client, conflict rules require the lawyer and usually the firm to withdraw.

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This page answers the general question as of 2025. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.

Disclaimer: Advisory only. Not binding precedent.

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

Opinion EF-25-01 (April 7, 2025) addresses the advocate-witness rule, SCR 20:3.7. As a general matter a lawyer may not testify as a fact witness at a trial where the lawyer also appears as advocate, and a lawyer who is "likely to be a necessary witness" may not avoid the rule by choosing to forgo testifying in order to keep the advocacy role. The committee explains that a witness is "necessary" only when the testimony is relevant, material, and unobtainable from other sources; testimony available elsewhere or only tangentially relevant is not necessary. Because the rule protects the integrity of and public confidence in the justice system rather than only the interests of the parties, informed consent does not prevent disqualification of the lawyer or exclusion of the testimony.

The committee describes how the analysis differs depending on whether the testimony helps or hurts the client. If the lawyer's testimony is favorable to the client, SCR 20:3.7(b) lets the lawyer handle pretrial matters and transfer the trial advocacy role to another lawyer in the firm if the testimony becomes necessary, with the client's informed consent; that personal disqualification is not imputed to the rest of the firm. If the testimony would be adverse to a current or former client, a conflict of interest exists under SCRs 20:1.7, 20:1.9(c), and 20:1.10 in addition to SCR 20:3.7, and in most cases the lawyer and the entire firm must withdraw. The committee considers informed consent to adverse-testimony conflicts unlikely to be reasonable, because a firm cannot credibly agree to attack the credibility of its own colleague.

The opinion also flags open questions and practical issues. The rule clearly applies to jury trials, but the committee concludes it does not apply automatically to bench trials or administrative hearings; in non-jury settings the tribunal is best positioned to decide whether to apply it, and the lawyer should seek that determination early. SCR 20:3.7(a) lists three exceptions: testimony on an uncontested issue, testimony on the nature and value of legal services rendered in the case, and situations where disqualification would work substantial hardship on the client. The committee notes disqualification motions are sometimes tactical, warns that an unfounded motion can violate SCR 20:3.1(a)(1) or 20:4.4(a), and observes that the rule has not been applied to pro se lawyer-litigants or, under Wisconsin case law, to guardians ad litem.

In practice

Under this opinion, conduct that matches SCR 20:3.7's fact pattern, a lawyer who is likely to be a necessary witness at a jury trial in which the lawyer would also act as advocate, is prohibited unless one of the three statutory exceptions applies, and the client cannot waive the prohibition. The committee states that because lawyers usually know early whether they may be a necessary witness, they should discuss the issue with the client at the earliest opportunity and, for bench trials or administrative proceedings, seek the tribunal's guidance on whether the rule applies.

Common questions

Q: When is a lawyer's testimony "necessary" under SCR 20:3.7?

A: When it is relevant, material, and unavailable from other sources. The committee explains the "necessary" standard narrowed the older "ought to be called" test and that testimony available elsewhere or only tangentially relevant is generally not necessary.

Q: Can the client consent to let the lawyer be both witness and advocate?

A: No. The committee concludes the rule protects the integrity of the justice system, not just the parties, so informed consent does not prevent disqualification or exclusion of the testimony.

Q: Is the testifying lawyer's disqualification imputed to the whole firm?

A: Not for a straightforward advocate-witness situation. The committee explains SCR 20:3.7(b) disqualifies only the testifying lawyer, so another firm lawyer may try the case, but adverse-testimony conflicts under SCRs 20:1.7 or 20:1.9 are imputed to the firm under SCR 20:1.10.

Q: Does the rule apply in bench trials and administrative hearings?

A: Not automatically. The committee concludes the rule clearly applies to jury trials but that application to non-jury proceedings should rest with the tribunal, and a lawyer in those settings should clarify as early as possible whether the rule will apply.

Q: What are the exceptions?

A: Three. SCR 20:3.7(a) allows the lawyer to testify and remain advocate where the testimony relates to an uncontested issue, to the nature and value of legal services rendered in the case, or where disqualification would work substantial hardship on the client.

Background and rules framework

The opinion interprets SCR 20:3.7 (Lawyer as Witness), Wisconsin's version of Model Rule 3.7. The committee traces the rule from Canon 19 of the 1908 Canons through DR 5-101(B) and DR 5-102(A) of the 1969 Code to Model Rule 3.7, and identifies its rationales as preventing jury confusion between the advocate and witness roles, avoiding unfair bolstering or prejudice, and protecting public confidence in the profession. When the lawyer's testimony would be adverse to a current or former client, the conflict rules SCRs 20:1.7, 20:1.9(c), and the imputation rule 20:1.10 control alongside SCR 20:3.7, and SCR 20:3.4(e) separately bars a lawyer from asserting personal knowledge of facts in issue except when testifying.

Citations and references

Rules of Professional Conduct:

Wis. SCR 20:3.7 / Model Rule 3.7 (lawyer as witness; advocate-witness rule)
Wis. SCR 20:1.7 / Model Rule 1.7 (current-client conflicts)
Wis. SCR 20:1.9(c) / Model Rule 1.9 (duties to former clients)
Wis. SCR 20:1.10 / Model Rule 1.10 (imputation of conflicts)
Wis. SCR 20:3.4(e) / Model Rule 3.4(e) (asserting personal knowledge of facts in issue)

Cases:

Dusky v. United States, 362 U.S. 402 (1960) (cited for competency in a companion context; here the opinion relies chiefly on disqualification case law)
Hollister v. Hollister, 173 Wis. 2d 413, 496 N.W.2d 642 (1992), guardian ad litem could not be called as a witness given the statutory advocacy duty
Peck v. Meda-Care Ambulance Corp., 156 Wis. 2d 662, 457 N.W.2d 538 (Ct. App. 1990), discussed on the rule's reach to administrative proceedings

Other opinions cited:

ABA Formal Opinion 473 (2016): a lawyer's obligations on receiving a subpoena for client information
North Carolina Ethics Op. 2020-4: Rule 3.7 does not necessarily bar a solo from representing the lawyer's own firm in a fee dispute

Source

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