Does filing his own affidavit in a case disqualify a lawyer from continuing to appear as counsel under the lawyer-witness rule?

Plain-English summary

An in-house lawyer who was also a corporate officer of a lending institution commenced a judicial real estate foreclosure on the institution's behalf and intended to file his own affidavits about facts relating to the action. He asked whether Bar Rules 3.4(j) and 3.5(b)(1), the lawyer-witness disqualification rules, prohibited him from continuing as counsel.

The Commission concluded that the mere filing of an affidavit does not per se violate those rules. An affidavit is a sworn statement that its contents are true, customarily used to fill an evidentiary vacuum on a necessary but uncontested issue. The purpose of the lawyer-witness disqualification, that it is unseemly for a lawyer to argue his own credibility as a witness and that the dual role may affect the lawyer's independent judgment, is not implicated to the same degree when the lawyer acts merely as an affiant.

The Commission added a caution rooted in the rule itself: filing the affidavit may lead to the lawyer testifying if the affidavit's subject matter is later controverted, which would trigger the disqualification provisions of Rules 3.4(j) and 3.5(b)(1). For that reason the opinion observed that choosing the lawyer as affiant may be inappropriate where other equally competent affiants are available.

Currency note

This opinion was issued in 1985, before Maine's replacement of the former Maine Bar Rules with the Maine Rules of Professional Conduct (effective August 1, 2009). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Does filing his own affidavit disqualify a lawyer from continuing as counsel?

A: The opinion concluded no, not by itself. Merely filing an affidavit does not per se violate Rules 3.4(j) or 3.5(b)(1), because an affidavit ordinarily fills an evidentiary gap on a necessary but uncontested point.

Q: Why doesn't the lawyer-witness rule apply to an affiant the same way it applies to a testifying witness?

A: The opinion reasoned that the rule guards against a lawyer arguing his own credibility and against the dual role affecting his independent judgment, considerations the Commission found not equally present when the lawyer signs an affidavit.

Q: When could filing an affidavit still create a disqualification problem?

A: The opinion concluded that if the affidavit's subject matter is controverted, the lawyer may have to testify, which would trigger the disqualification provisions of Rules 3.4(j) and 3.5(b)(1).

Q: Should the lawyer use his own affidavit if others could supply it?

A: The opinion observed that choosing the lawyer as affiant may be inappropriate where other equally competent affiants are available.

Background and rules framework

The opinion interprets former Maine Bar Rules 3.4(j) and 3.5(b)(1), the lawyer-witness disqualification provisions, which correspond to ABA Model Rule 3.7 (a lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness, subject to exceptions). The opinion frames the rule's purpose as preventing a lawyer from arguing his own credibility and protecting his independent judgment.

Citations and references

Rules of Professional Conduct:

• Model Rule 3.7 (lawyer as witness)
• Maine Bar Rules 3.4(j), 3.5(b)(1)

Cases:

• Jagoe v. Blocksum, 440 A.2d 1022 (Me. 1982), the nature of an affidavit as a sworn statement

See also

• Maine Ethics Op. 108: Witness-Lawyer's Firm Continuing
• Maine Ethics Op. 162: Lawyer-Witness Who Certified Title
• Maine Ethics Op. 78: Lawyer-Witness on His Own Fees

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=91045

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Issued by the Professional Ethics Commission

Date Issued: June 4, 1985

Facts

Attorney A is employed as "in-house" counsel to a lending institution. He is also a corporate officer of the institution. In the course of his employment A has custody from time to time of commercial loan documentation generated in the ordinary course of business. Other officers are customarily involved in the preparation and execution of documents during the course of commercial transactions, and are usually available to serve as witnesses in connection with litigation, A has commenced a judicial real estate foreclosure action on behalf of his employer. Service is made upon all parties. A intends to file certain affidavits in connection with the foreclosure.

Questions Propounded

Where Attorney A files his own affidavits as to facts relating to pending action, do Bar Rules 3.4(j) and/or 3.5(b)(1) prohibit A from appearing as counsel?

Opinion

It is our opinion that the mere filing of an affidavit does not per see violate the lawyer/witness disqualification rules of Bar Rules 3.4(j) or 3.5(b)(1). An affidavit is a statement under oath to the effect that the contents of the affidavit are true.[1] An affidavit is customarily utilized to fill an evidentiary vacuum relating to a necessary but uncontested issue.

The purpose of the lawyer-witness disqualification is that it is considered unseemly for an attorney to be arguing his own credibility as a witness. The dual role of lawyer and witness may also affect the independent judgment of a lawyer. Our conclusion is that the application of the lawyer-witness disqualification to the lawyer as affiant is not supported by the same considerations.

Nevertheless, the attorney filing such an affidavit may lead to his testifying as a witness, should the subject matter of the affidavit be controverted, thus triggering the disqualification provisions of Rule 3.4(j) and 3.5(b)(1). It should therefore be obvious that the choice of the lawyer as affiant may be inappropriate where other equally competent affiants are available.

Footnote

[1] Jagoe v. Blocksum, 440 A.2d 1022 (Me. 1982).