18.07. Lawyer as Witness [Rule 3.7]

A lawyer may have factual information about a claim that will make the lawyer a witness in the matter.  Rule 3.7 restricts the ability of a lawyer to act as a lawyer and witness in the same matter.  The concern is that the jury will be confused about the role the lawyer is playing in the course of representation:  “A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others.  It may not be clear whether a statement by an advocate-witness should be taken as proof of an analysis of the proof.”[1]  Here are some other reasons given for prohibiting a lawyer from also being a witness in most cases:  “(1) to ensure that a client’s case is not compromised by being represented by a lawyer who could be a more effective witness for the client by not also serving as an advocate, (2) to ensure that the client is not burdened by counsel who may have to offer testimony substantially adverse to the client’s position, (3) to avoid confusion for the trier of fact, and (4) to avoid possible prejudice to the opposing party that can arise when one person acts in the dual roal of advocate and witness.”[2]

Because of this concern, a lawyer is usually prohibited from serving as both an advocate and a witness in a case.  The Rule does recognize three exceptions (where the lawyer can act as both an advocate and witness):  (1)  where the testimony relates to an uncontested issue in the case; (2) the testimony will relate to the nature/value of legal services rendered in the case; or (3) disqualification would work a substantial hardship on the client.[3]  In addition, even if one lawyer in a firm would be disqualified because they would be a witness, disqualification is not imputed to the lawyer’s firm – and another lawyer can take up the representation (unless it would create a conflict of interest).[4]

Larry Lawyer is the long-time lawyer of Clyde Client.  Lawyer is representing Client in a case against Big Box, Inc.  One element of the claim against Big Box is the amount of attorney fees that Lawyer has incurred.  Lawyer is prepared to testify that his fee in the matter is $100,000.  Client does not agree that he owes Lawyer $100,000 because he believes that lawyer agreed to provide the representation for a flat fee of $50,000.  Would it be appropriate for lawyer to testify in the case and also represent Client in the matter?

No.  Although Rule 3.7(a)(2) provides that a lawyer can testify as to the “nature and value” of the services rendered, so it would be appropriate under Rule 3.7.  However, because there is a dispute between the lawyer and client as to the value of the services – it would create a conflict of interest between the client’s interests and the lawyer’s own personal interests (under Rule 1.7).  It is unliklely that the lawyer could get consent to waive this conflict and, because it is a Rule 1.7 conflict – because the lawyer is conflicted from the representation, all members of Lawyer’s firm would be disqualified as well. 

[1] ABA Rule 3.7, Comment [2].

[2] Texas Ethics Op. 682 (Oct. 2018).

[3] ABA Rule 3.7(a)(1) – (3).

[4] ABA Rule 3.7(b).