Can a lawyer testify for impeachment when another lawyer in the same firm is trying the case?
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This page answers the general question as of 1986. 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 committee addressed whether a lawyer who is a member of a law firm could testify for impeachment purposes in a case in which another lawyer from the same firm was representing a party at trial. The committee was of the opinion that RPC 3.7 would prohibit that firm lawyer from testifying.
The committee added that the Rules would not prohibit a non-lawyer employee of the firm from testifying in the same situation.
Currency note
This opinion was issued in 1986, before the 2006 revisions to the Washington Rules of Professional Conduct. RPC 3.7 on a lawyer as a witness was later renumbered and amended. Treat this page as historical context, not current guidance.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: Can a lawyer testify to impeach a witness when a colleague in the same firm is trying the case?
A: Under this opinion, no. The committee was of the opinion that RPC 3.7 would prohibit a firm lawyer from testifying for impeachment purposes when another lawyer from the firm was representing a party at trial.
Q: Can a non-lawyer employee of the firm testify instead?
A: Yes. The committee noted the Rules would not prohibit a non-lawyer employee of the firm from testifying.
Background and rules framework
The opinion interprets Washington RPC 3.7 on a lawyer as a witness, corresponding to Model Rule 3.7, as it stood in 1986. The committee read the rule to reach a lawyer in the same firm as the trial advocate, so that the firm lawyer could not testify for impeachment, while treating a non-lawyer employee of the firm as outside the rule.
Citations and references
Rules of Professional Conduct:
- Washington RPC 3.7 (lawyer as a witness), corresponding to Model Rule 3.7.
See also
- WSBA Ethics Op. 1003: a lawyer-witness may continue representation outside the trial itself
- WSBA Ethics Op. 930: in-house counsel as a witness
- NYSBA Ethics Op. 1045: in-house counsel as a witness in an agency investigation
Source
- Landing page: https://ao.wsba.org/print.aspx?ID=109
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
Advisory Opinion: 998
Year Issued: 1986
RPC(s): RPC 3.7
Subject: Lawyer as witness; non-lawyer staff as witness
The Committee was of the opinion that RPC 3.7 would prohibit a lawyer who is a member of a law firm from testifying for impeachment purposes in a case in which another lawyer from the firm was representing a party at trial. The Committee did note, however, that the Rules would not prohibit a non-lawyer employee of the firm from testifying.
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