A federal district court (E.D. Va.) recently provided a lengthy analysis of, and the rationales underlying, the lawyer-as-witness rule. Of particular note, the court highlighted that movants face an uphill battle to disqualify opposing counsel on the basis of this rule, particularly in criminal cases. (The generally similar ABA Model Rule 3.7 can be viewed here, although the court was applying a Virginian variant that offers a bit more flexibility when the opposing side will be calling the lawyer-witness.) The court noted that criminal defendants have a constitutional right to counsel of choice, that the ordinary presumption in conflicts cases that “all doubts should be resolved in favor of disqualification” does not necessarily apply to lawyer-as-witness cases, and that defense counsel and client (not the government) are in the “best position” to know when defense counsel’s testimony will be “necessary.” In light of these presumptions and hurdles, the government’s motion to disqualify defense counsel was denied, but the court simultaneously issued a conscientious and somewhat novel order requiring the criminal defendant to seek independent counsel to advise on whether the defendant’s interests would be best served by having defense counsel testify or remain as counsel. A link to the full case follows: United States v. Perry, __ F. Supp. 2d __ (E.D. Va. July 2, 2014).