I may have to testify about a witness's inconsistent statements in my client's case. Must I withdraw, or can I keep working on the matter short of trial under Rule 3.7?

Plain-English summary

The inquiring attorney represented the administrator of an estate seeking to recover, for the estate's benefit, funds held by the decedent and certain heirs in joint accounts. One heir told the attorney she was unaware her name was on one of the decedent's accounts. After the complaint was filed, the attorney deposed that heir, who contradicted her earlier statements and testified under oath that she knew her name was on one of the joint accounts; she declined an opportunity to retract. Believing he or she might have to testify about these inconsistent statements, the attorney asked whether he or she must withdraw or could continue representing the client in pending litigation.

The Panel set out Rule 3.7 ("Lawyer as Witness"). Rule 3.7(a) provides that 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 or to the nature and value of legal services, or where disqualification would work substantial hardship on the client. Rule 3.7(b) permits a lawyer to act as advocate at a trial in which another lawyer in the firm is likely to be a witness, unless precluded by Rule 1.7 or Rule 1.9. The Panel noted that Rule 3.7(a) does not bar the attorney from accepting the employment at all, and that a lawyer may play a role in the representation short of trial advocacy, citing Culebras Enterprises Corp. v. Rivera-Rios, ABA Informal Opinion 89-1529 (1989), and Michigan Opinion CI-1118 (1985), which defines an "advocate" as one who participates as a spokesperson for the client in open court.

The Panel opined that the attorney may continue to represent the client in negotiations and in an advisory capacity prior to any court appearances, and that at trial any attorney in the inquiring attorney's law firm may represent the client.

Currency note

This opinion was issued in 1994 (Opinion 94-61, issued August 25, 1994), after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 3.7 as originally adopted. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process, which amended Rule 3.7. 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 mentioned here.

Common questions

Q: If I might have to testify, do I have to withdraw from the whole case?

A: The Panel concluded no. Rule 3.7(a) bars acting as trial advocate when the lawyer is likely to be a necessary witness, but does not bar accepting the employment or handling the matter short of trial advocacy.

Q: What parts of the representation can the lawyer still handle?

A: The Panel opined the attorney may continue to represent the client in negotiations and in an advisory capacity prior to any court appearances.

Q: Who can try the case if the lawyer is a likely witness?

A: The Panel opined that any attorney in the inquiring attorney's law firm may represent the client at trial, consistent with Rule 3.7(b).

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, along with the imputation limits in Rules 1.7 and 1.9. Rule 3.7(a) disqualifies a likely-necessary-witness lawyer from trial advocacy subject to exceptions; Rule 3.7(b) allows a firm colleague to serve as advocate unless a Rule 1.7 or 1.9 conflict precludes it. The Panel distinguished advocacy at trial from pretrial and advisory work.

Citations and references

Rules of Professional Conduct:

• MR 3.7 / RI RPC 3.7(a), (b) (lawyer as witness; advocate-witness rule and firm imputation)
• MR 1.7; MR 1.9 (conflict limits referenced by Rule 3.7(b))

Cases:

• Culebras Enterprises Corp. v. Rivera-Rios, 844 F.2d 94 (1st Cir. 1988), pretrial work by lawyers who would be witnesses but not trial counsel does not violate Rule 3.7

Other opinions cited:

• ABA Committee on Ethics and Professional Responsibility, Informal Opinion 89-1529 (1989): a lawyer expecting to testify on contested issues may handle pretrial proceedings with client consent
• State Bar of Michigan Opinion CI-1118 (1985): "advocate" means one who participates as a spokesperson for the client in open court

See also

• RI EAP Opinion 94-38: subpoenaed lawyer's duties under Rule 1.6
• RI EAP Opinion 94-45: adverse concurrent clients, attorney must withdraw from Client B

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%2094-61.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

ETHICS ADVISORY PANEL
OPINION #94-61 REQUEST #532
Issued August 25, 1994

The inquiring attorney represents an administrator of an estate who seeks to bring an action to recover for the benefit of the estate funds held by the decedent and certain heirs at law in joint accounts. One of the heirs informed the attorney that she was not aware that her name was on one of the decedent's accounts. After filing a complaint in court, the attorney deposed the same heir who contradicted her previous statements and testified under oath that she knew her name was on one of the joint accounts. The heir was given an opportunity to retract her statements which she did not. The attorney believes that he/she may be required to testify in court regarding these inconsistent statements. The attorney asks whether he/she may continue as counsel or must he/she withdraw, or can he/she continue to represent the client in pending litigation until he/she learns whether the testimony will be required.

Rule 3.7 entitled "Lawyer as Witness" states the following:

(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.

(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.

Rule 3.7(a) prohibits a lawyer who is likely to be a necessary witness from acting as an advocate at trial. However, Rule 3.7 does not bar the attorney from accepting the employment at all. Pursuant to case law, an attorney can actually play a role in the representation of a client short of trial advocacy. See, e.g., Culebras Enterprises Corp. v. Rivera-Rios, 844 F.2d 94 (1st Cir. 1988) wherein lawyers who performed substantial pre-trial work in case in which, had it gone to trial, lawyers would have been called as witnesses but would not have served as trial counsel. The first circuit held that in performing the pre-trial work the lawyers did not violate Rule 3.7 because they did not act and did not plan to act as the trial attorney. American Bar Association Committee on Ethics and Professional Responsibility, Informal Opinion 89-1529 (1989) states that lawyers who expect to testify on contested issues at trial may represent the party in pre-trial proceedings, provided that the client consents after consultation and the lawyer reasonably believes the representation will not be adversely affected by the client's interest in the expected testimony. State Bar of Michigan, Committee on Professional and Judicial Ethics, Opinion CI-1118 (1985) states that "advocate" in the context of Rule 3.7 is best defined as a person who "participates as a spokesperson for the client in open court." The opinion (citing Annotated Model Rules of Professional Conduct, 2nd ed., 1992 p.391) states that a lawyer who in his capacity as certified public accountant will be providing expert testimony in a divorce case may also serve as co-counsel to a lawyer from another firm.

The Panel opines that the attorney may continue to represent the client in negotiations and in an advisory capacity prior to any court appearances. At that time, any attorney in the inquiring attorney's law firm may represent the client at trial.