Rule 3.08. Lawyer as Witness

RULE 3.08. Lawyer as Witness

(a) A lawyer shall not accept or continue employment as an advocate before a tribunal in a

contemplated or pending adjudicatory proceeding if the lawyer knows or believes that the

lawyer is or may be a witness necessary to establish an essential fact on behalf of the lawyer’s

client, unless:

(1) the testimony relates to an uncontested issue;

(2) the testimony will relate solely to a matter of formality and there is no reason to

believe that substantial evidence will be offered in opposition to the testimony;

(3) the testimony relates to the nature and value of legal services rendered in the case;

(4) the lawyer is a party to the action and is appearing pro se; or

(5) the lawyer has promptly notified opposing counsel that the lawyer expects to

testify in the matter and disqualification of the lawyer would work substantial

hardship on the client.

(b) A lawyer shall not continue as an advocate in a pending adjudicatory proceeding if the

lawyer believes that the lawyer will be compelled to furnish testimony that will be

substantially adverse to the lawyer’s client, unless the client consents after full disclosure.

(c) Without the client’s informed consent, a lawyer may not act as advocate in an adjudicatory

proceeding in which another lawyer in the lawyer’s firm is prohibited by paragraphs (a) or (b)

from serving as advocate. If the lawyer to be called as a witness could not also serve as an

advocate under this Rule, that lawyer shall not take an active role before the tribunal in the

presentation of the matter.

Comment:

1. A lawyer who is considering accepting or continuing employment in a contemplated or

pending adjudicatory proceeding in which that lawyer knows or believes that he or she may

be a necessary witness is obligated by this Rule to consider the possible consequences of

those dual roles for both the lawyer’s own client and for opposing parties.

2

n the

presentation of the matter.

Comment:

1. A lawyer who is considering accepting or continuing employment in a contemplated or

pending adjudicatory proceeding in which that lawyer knows or believes that he or she may

be a necessary witness is obligated by this Rule to consider the possible consequences of

those dual roles for both the lawyer’s own client and for opposing parties.

2. One important variable in this context is the anticipated tenor of the lawyer’s testimony. If

that testimony will be substantially adverse to the client, paragraphs (b) and (c) provide the

governing standard. In other situations, paragraphs (a) and (c) control.

3. A lawyer who is considering both representing a client in an adjudicatory proceeding and

serving as a witness in that proceeding may possess information pertinent to the

representation that would be substantially adverse to the client were it to be disclosed. A

lawyer who believes that he or she will be compelled to furnish testimony concerning such

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matters should not continue to act as an advocate for his or her client except with the client’s

informed consent, because of the substantial likelihood that such adverse testimony would

damage the lawyer’s ability to represent the client effectively.

4. In all other circumstances, the principal concern over allowing a lawyer to serve as both an

advocate and witness for a client is the possible confusion that those dual roles could create

for the finder of fact. Normally those dual roles are unlikely to create exceptional difficulties

when the lawyer’s testimony is limited to the areas set out in sub-paragraphs (a)(1)-(4) of this

Rule. If, however, the lawyer’s testimony concerns a controversial or contested matter,

combining the roles of advocate and witness can unfairly prejudice the opposing party. 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

ny is limited to the areas set out in sub-paragraphs (a)(1)-(4) of this

Rule. If, however, the lawyer’s testimony concerns a controversial or contested matter,

combining the roles of advocate and witness can unfairly prejudice the opposing party. 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 or as an analysis of the proof.

5. Paragraph (a)(1) recognizes that if the testimony will be uncontested, the ambiguities in the

dual role are purely theoretical. Paragraph (a)(2) recognizes that similar considerations apply

if a lawyer’s testimony relates solely to a matter of formality and there is no reason to believe

that substantial opposing evidence will be offered. In each of those situations requiring the

involvement of another lawyer would be a costly procedure that would serve no significant

countervailing purpose.

6. Sub-paragraph (a)(3) recognizes that where the testimony concerns the extent and value of

legal services rendered in the action in which the testimony is offered, permitting the lawyers

to testify avoids the need for a second trial with new counsel to resolve that issue. Moreover,

in such a situation the judge has firsthand knowledge of the matter in issue; hence, there is

less dependence on the adversary process to test the credibility of the testimony. Sub-

paragraph (a)(4) makes it clear that this Rule is not intended to affect a lawyers' right to self-

representation.

7. Apart from these four exceptions, sub-paragraph (a)(5) recognizes an additional exception

based upon a balancing of the interests of the client and those of the opposing party. In

implementing this exception, it is relevant that one or both parties could reasonably foresee

that the lawyer would probably be a witness

Rule is not intended to affect a lawyers' right to self-

representation.

7. Apart from these four exceptions, sub-paragraph (a)(5) recognizes an additional exception

based upon a balancing of the interests of the client and those of the opposing party. In

implementing this exception, it is relevant that one or both parties could reasonably foresee

that the lawyer would probably be a witness. For example, sub-paragraph (a)(5) requires that

a lawyer relying on that sub-paragraph as a basis for serving as both an advocate and a

witness for a party give timely notification of that fact to opposing counsel. That requirement

serves two purposes. First, it prevents the testifying lawyer from creating a substantial

hardship, where none once existed, by virtue of a lengthy representation of the client in the

matter at hand. Second, it puts opposing parties on notice of the situation, thus enabling them

to make any desired response at the earliest opportunity.

8. This rule does not prohibit the lawyer who may or will be a witness from participating in

the preparation of a matter for presentation to a tribunal. To minimize the possibility of unfair

prejudice to an opposing party, however, the Rule prohibits any testifying lawyer who could

not serve as an advocate from taking an active role before the tribunal in the presentation of

the matter. See paragraph (c). Even in those situations, however, another lawyer in the

testifying lawyer’s firm may act as an advocate, provided the client’s informed consent is

obtained.

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9. Rule 3.08 sets out a disciplinary standard and is not well suited to use as a standard for

procedural disqualification. As a disciplinary rule it serves two principal purposes. The first is

to insure 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. See paragraph

ained.

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9. Rule 3.08 sets out a disciplinary standard and is not well suited to use as a standard for

procedural disqualification. As a disciplinary rule it serves two principal purposes. The first is

to insure 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. See paragraph

(a). The second is to insure that a client is not burdened by counsel who may have to offer

testimony that is substantially adverse to the clients cause. See paragraph (b).

10. This Rule may furnish some guidance in those procedural disqualification disputes where

the party seeking disqualification can demonstrate actual prejudice to itself resulting from the

opposing lawyer’s service in the dual roles. However, it should not be used as a tactical

weapon to deprive the opposing party of the right to be represented by the lawyer of his or her

choice. For example, a lawyer should not seek to disqualify an opposing lawyer under this

Rule merely because the opposing lawyer’s dual roles may involve an improper conflict of

interest with respect to the opposing lawyer’s client, for that is a matter to be resolved

between lawyer and client or in a subsequent disciplinary proceeding. Likewise, a lawyer

should not seek to disqualify an opposing lawyer by unnecessarily calling that lawyer as a

witness. Such unintended applications of this Rule, if allowed, would subvert its true purpose

by converting it into a mere tactical weapon in litigation.