As a very general rule, lawyers cannot be both an advocate and a witness in the same proceeding. Lawyers, of course, often bear witness to many relevant facts about both their clients and their clients’ causes. It is unsurprising, then, that this potential role conflict not only arises frequently but is a frequent basis for a disqualification challenge.[1] Although the challenge is frequently brought, it might be defeated if (among other reasons) another lawyer agrees to represent the client at the eventual hearing or trial.[2] This “other” lawyer generally may be someone inside or outside the lawyer’s firm.[3]

[1]     See generally United States v. Dyess, 231 F. Supp. 2d 493, 496 (S.D. W. Va. 2002) (citation omitted) (“The rule forbidding a lawyer to act as both advocate and witness in the same proceeding acknowledges several important considerations. The most important is that the attorney-witness may not be a fully objective witness or may be perceived by the trier of fact as distorting the truth for the sake of his client. While the danger is greater when matters are tried to a jury, it does not disappear when the lawyer testifies in matters tried to the bench.”); Main Events Prods., LLC v. Lacy, 220 F. Supp. 2d 353, 356-57 (D.N.J. 2002) (citations omitted) (noting that, although another lawyer should be retained for representation during a hearing or trial, “a number of other courts interpreting RPC 3.7 have concluded that an attorney who will testify at trial need not be disqualified from participating in pre-trial matters”); In re Sandoval, 308 S.W.3d 31, 33-34 (Tex. Ct. App. 2009) (concluding that the attorney was erroneously disqualified because the attorney’s testimony about notarizing a choice of conservator document was not “an essential element” in the proceedings); Douglas R. Richmond, The Rude Question of Standing in Attorney Disqualification Disputes, 25 Am. J. Trial Advoc. 17, 18 (2001) (“An attorney who is alleged to be a necessary witness at the trial of a matter is certain to be the subject of a disqualification motion.”).

[2]     Cf. United States v. Kenney, 911 F.2d 315, 322-23 (9th Cir. 1990) (Kozinski, J., dissenting) (internal citations omitted) (“Having an Assistant U.S. Attorney who worked on the case testify before the jury is almost always an unwise and perilous exercise as it raises serious temptations for prosecutorial overreaching. In this case the temptation proved too great; it denied the defendant a fair trial. There are two things a prosecutor may not do while testifying. The first is vouch for a witness; the second is express a personal opinion on the defendant’s guilt or the strength of the case against him. In this case Assistant U.S. Attorney Bruce Carter did both. A careful reading of the record finds Carter testifying that Silverman, a key government witness, was cooperative, that he never changed his story, and that the U.S. Attorney’s Office routinely verifies the statements of its witnesses. Carter stopped just short of pinning a Boy Scout Merit Badge on Silverman; his accolades could not help but persuade the jury that they ought to believe Silverman because an experienced and efficient prosecutor like Carter found him credible.”); see generally Richard Flamm, Lawyer Disqualification: Conflicts of Interest and Other Bases § 16.7 (2003) (discussing the modern trend against imputing disqualification to other members of the lawyer’s firm).

[3]     See Model Rules R. 3.7(b) (“A lawyer may act as advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.”).

[Source: Keith Swisher, The Practice and Theory of Lawyer Disqualification, 27 Geo. J. Legal Ethics 71 (2014)]