Can a lawyer be hired by another firm to attend a medical examination and later testify as a witness about it?
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This page answers the general question as of 1987. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
The inquiry asked whether the lawyer-as-witness rule barred a lawyer from being hired by a law firm to attend a medical examination and later testify as a witness about that examination.
The committee was of the opinion that RPC 3.7 would not prohibit the arrangement. It reasoned that the lawyer is not a member of the firm that employed the lawyer for this purpose and would not be acting as an advocate at trial, so the rule restricting a lawyer from acting as advocate in a trial where the lawyer is likely to be a necessary witness did not apply.
Currency note
This opinion was issued in 1987, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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 mentioned here.
Common questions
Q: Does the lawyer-as-witness rule stop a lawyer from being hired just to observe and testify?
A: Per the committee, no. RPC 3.7 did not prohibit the arrangement because the lawyer was not a member of the hiring firm and would not act as an advocate at trial.
Q: Why did it matter that the lawyer belonged to a different firm?
A: The committee tied its conclusion to the lawyer not being a member of the hiring firm and not serving as advocate, the combination that kept RPC 3.7's advocate-witness bar from applying.
Background and rules framework
The opinion applied RPC 3.7 (lawyer as witness, corresponding to ABA Model Rule 3.7), which restricts a lawyer from acting as advocate at a trial in which the lawyer is likely to be a necessary witness. The committee read the rule as not reaching a lawyer hired only to attend a medical examination and testify about it, because that lawyer would not be the advocate at trial and was not a member of the firm conducting the case.
Citations and references
Rules of Professional Conduct:
- ABA Model Rule 3.7 (lawyer as witness); Washington RPC 3.7
See also
- WSBA Ethics Op. 930: In-House Counsel as a Witness
- WSBA Ethics Op. 1306: Lawyer-Witness Rule in Arbitration
- WSBA Ethics Op. 1711: Former Partner as a Witness
Source
- Landing page: https://ao.wsba.org/print.aspx?ID=1141
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
Advisory Opinion: 1104
Year Issued: 1987
RPC(s): RPC 3.7
Subject: Lawyer employed by another law firm to attend a medical examination and later testify as witness
The Committee was of the opinion that Rule 3.7 of the Rules of Professional Conduct would not prohibit you from being employed by a law firm to attend a medical examination and later testify as a witness regarding that examination because you are not a member of the law firm and would not be acting as an advocate at trial.
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