I'm the co-executor and attorney for an estate that can't find other counsel, and I'll definitely be a witness. Can I act as advocate at trial under Rule 3.7?

Plain-English summary

The inquiring attorney is the co-executor and attorney for an estate. The attorney hired counsel to represent the estate in a litigation matter, but that counsel withdrew before trial. The attorney moved in Probate Court to hire successor counsel; the Probate Court denied the motion, and the estate has been unable to find another attorney. The attorney asked whether he or she may represent the estate in the pending litigation given that he or she will "definitely be called as a witness."

The opinion applies Rule 3.7, "Lawyer as Witness," under which a lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness, except where the testimony relates to an uncontested issue, relates to the nature and value of legal services rendered in the case, or where disqualification would work substantial hardship on the client. The opinion notes the comment's caution that combining the roles of advocate and witness can prejudice the opposing party and can involve a conflict of interest between lawyer and client.

The inquiring attorney told the Panel that the Rule 3.7(a)(1) and (a)(2) exceptions do not apply, because the testimony relates to a contested issue and does not concern the nature or value of legal services. The Panel states it is unable to determine whether the circumstances fall within the Rule 3.7(a)(3) substantial-hardship exception, and therefore is unable to render an opinion on whether the attorney may act as both advocate and witness. It suggests that a motion before the court in which the matter is pending, with notice to all parties, may be the appropriate method to determine whether a substantial hardship exists.

In practice

Under this opinion, the advocate-witness question is left to the trial court because the only potentially available exception -- Rule 3.7(a)(3) substantial hardship -- turns on facts the Panel cannot assess. The opinion identifies the uncontested-issue and legal-services exceptions as inapplicable by the attorney's own account, and channels the substantial-hardship determination to a noticed motion in the court where the litigation is pending.

Common questions

Q: Can a lawyer who will be a necessary witness also serve as trial advocate?

A: Generally no under Rule 3.7, subject to three exceptions; here the opinion says the first two do not apply and it cannot determine whether the substantial-hardship exception does.

Q: Why couldn't the Panel answer the question?

A: The opinion states it is unable to determine whether the circumstances fall within the Rule 3.7(a)(3) substantial-hardship exception, so it declines to render an opinion.

Q: How should the attorney resolve it?

A: The opinion suggests a motion before the court in which the matter is pending, with notice to all parties, to determine whether a substantial hardship exists.

Background and rules framework

The opinion interprets Rhode Island Rule of Professional Conduct 3.7, "Lawyer as Witness," the analog of Model Rule 3.7. Rule 3.7(a) bars a lawyer from acting as advocate at a trial where the lawyer is likely to be a necessary witness, except when the testimony concerns an uncontested issue or the nature and value of legal services, or when disqualification would work substantial hardship on the client. The Rule's comment notes the prejudice to the opposing party and potential lawyer-client conflict from combining the roles.

Citations and references

Rules of Professional Conduct:

• MR 3.7 / RI RPC 3.7 (lawyer as witness; advocate-witness rule and its exceptions)

See also

• RI EAP Opinion 2025-10: may not be both advocate and expert witness in the same matter
• RI EAP Opinion 91-31: a lawyer who prepared real estate documents is a likely witness

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2093-40.pdf

Original opinion text

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

(FINAL)
ETHICS ADVISORY PANEL
Opinion #93-40, Request #353
Issued July 28, 1993

An attorney is the co-executor and attorney for an estate. The attorney hired counsel to represent the estate in a litigation matter. Prior to trial, counsel withdrew from the litigation. The attorney filed a motion in Probate Court to hire successor counsel. The Probate Court denied the motion. The estate has been unable to find another attorney to represent the estate. The attorney asks whether he may represent the estate in the pending litigation given that he/she will "definitely be called as a witness."

Rule 3.7 entitled "Lawyer as Witness" states that:

(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:

(1) the testimony relates to an uncontested issue;

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

(3) disqualification of the lawyer would work substantial hardship on the client.

The comments to the rule point out that "Combining the roles of advocate and witness can prejudice the opposing party and can involve a conflict of interest between the lawyer and client."

The inquiring attorney informs the Panel that the exceptions contained in Rule 3.7(a)(1) and 3.7(a)(2) do not apply, as his testimony will relate to a contested issue and does not involve the nature or value of legal services rendered. The Panel is unable to determine whether the circumstances described by the inquiring attorney fall within exception 3.7(a)(3), "substantial hardship." The Panel is unable to render an opinion as to whether the attorney may act as an advocate and a witness at trial, but suggests that a motion before the court in which the matter is pending, with notice to all parties, may be the appropriate method to determine whether a "substantial hardship" exists.