Can a lawyer try the case if the lawyer will also testify about a conversation with the opposing party?
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This page answers the general question as of 1994. Ezel answers yours: whether it's allowed on your facts, under the current Illinois Rules of Professional Conduct, with citations.
Plain-English summary
Attorney A, representing a tenant in a breach-of-lease action, had telephoned the other party demanding immediate occupancy, and in that call the other party gave reasons for refusing. Attorney A then filed suit and intended to testify about the conversation. The question was whether Attorney A is disqualified as advocate because he will be a witness.
The opinion set out Rule 3.7's general rule that a lawyer should avoid being both advocate and witness, with exceptions for testimony on uncontested matters, matters of formality, the value of the lawyer's services, or where refusing the employment would work a substantial hardship on the client. It concluded Attorney A's testimony fits none of those exceptions, and that there is no substantial hardship under the hardship exception because a member of his own firm is available to try the case. It discussed the federal five-point disqualification test from United States v. Morris and the limited circumstances (per Greater Rockford Energy) where a later-stage case, uniquely necessary attorney testimony, and a harassing disqualification motion might establish hardship.
The opinion concluded that Rule 3.7(c) allows a lawyer to act as advocate in a trial where another lawyer in the same firm may be called as a witness, so the second firm lawyer could try the case while Attorney A testifies. To the direct question, it concluded Attorney A may well be disqualified as advocate if he testifies, because he had advance knowledge he would be a witness and the credibility of his testimony in a dual role may disadvantage his client, with no real hardship to except the situation from the Rule. It noted that Rule 3.7(c) does not resolve the difficulty for a sole practitioner.
Currency note
This opinion was issued in 1994, before Illinois adopted the 2010 Illinois Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in May 2010 as generally consistent with the 2010 Rules (referring to Rule 3.7), while noting the specific standards referenced may differ from the 2010 Rules. Subsequent rule amendments or later opinions may have changed the analysis. Verify against current rules before relying on any specific rule or requirement mentioned here.
Common questions
Q: Can a lawyer both try a case and testify in it?
A: The opinion concluded that, as a general rule, a lawyer should avoid being both advocate and witness, and is likely disqualified as advocate under Rule 3.7 unless the testimony fits an exception or refusal would work a substantial hardship on the client.
Q: Does having a firm colleague available change the analysis?
A: Yes. The opinion concluded that because a member of the lawyer's own firm could try the case, there was no substantial hardship, and Rule 3.7(c) lets the colleague act as advocate while the first lawyer testifies.
Q: When can a lawyer testify and still serve as advocate?
A: The opinion concluded the hardship exception may apply only in limited situations, such as where the case is at a later stage, the lawyer's testimony is unique and unavailable elsewhere, and the disqualification motion amounts to harassment.
Background and rules framework
The opinion interpreted Rule 3.7 (lawyer as witness, including the exceptions in Rule 3.7(a), the limits in Rule 3.7(b), and the firm-colleague allowance in Rule 3.7(c); Model Rule 3.7). It applied federal case law on disqualification, including United States v. Morris and Greater Rockford Energy & Technology v. Shell Oil.
Citations and references
Rules of Professional Conduct:
- Model Rule 3.7 (lawyer as witness) / Illinois Rule 3.7(a), (b), (c)
Cases:
- United States v. Morris, 714 F.2d 669 (7th Cir. 1983), five-point disqualification test
- Greater Rockford Energy & Technology v. Shell Oil, 777 F. Supp. 690 (C.D. Ill. 1991), hardship exception
Other opinions cited:
- ISBA Opinions 540 and 389
- ABA Informal Opinion No. 89-1529
See also
Source
- Landing page: https://www.isba.org/ethics/opinions/9307
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