If a lawyer will probably have to testify from personal knowledge for the client, must the lawyer and the firm withdraw from the case?

Plain-English summary

Opinion E-88-6 asked whether an attorney must withdraw from representing a client when circumstances would likely require the attorney to give testimony from personal knowledge on the client's behalf, where the testimony would not be adverse to the client but would be challenged by the third-party opponent. The committee explained that prior to the effective date of the Rules of Professional Conduct on January 1, 1988, the answer generally would have been yes, the lawyer and the firm must withdraw, citing the former SCR 20.24(2) and 20.25(1).

Under the new SCR 20:3.7, the committee concluded, a lawyer's testifying on behalf of the client on a contested issue does not necessarily disqualify other members of the firm from acting as advocates. SCR 20:3.7(b) permits other firm members to replace the testifying lawyer as advocates, provided the testifying lawyer is not conflicted under SCR 20:1.7 or 20:1.9. If the testifying lawyer is conflicted under one of those rules, SCR 20:1.10(a) would disqualify all firm members from acting as advocates, but those rules provide for a client waiver that would permit another firm member to act as advocate. The committee added that although SCR 20:3.7 affords substantial protection from disqualification motions, lawyers and their firms may still conclude that a client's interests are better served by substituting new counsel in some cases, for example because a jury might give the lawyer's testimony less credibility due to the firm's obvious self-interest. It noted that although SCR 20:3.7 does not expressly require client consultation and consent to proceed with another firm member as advocate, informed client consent is not only prudent but most likely required by other rules such as SCR 20:1.2, 20:1.4, and 20:1.7(b).

Currency note

This opinion was issued in 1988, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update). The lawyer-as-witness rule SCR 20:3.7 and the conflict and imputation rules it relies on were later revised. 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 Treat this page as historical context, not current guidance.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: Must a lawyer who will testify for the client withdraw from the case?

A: Per the opinion, not necessarily, and not the whole firm. Under SCR 20:3.7 the lawyer's testimony on a contested issue does not by itself disqualify other firm members from acting as advocates.

Q: When is the firm disqualified?

A: The committee concluded that if the testifying lawyer is conflicted under SCR 20:1.7 or 20:1.9, SCR 20:1.10(a) disqualifies the firm from advocacy, unless the client waives the conflict.

Q: Should the client consent to another firm lawyer taking over advocacy?

A: The committee said that although SCR 20:3.7 does not expressly require it, informed client consent is prudent and most likely required by other rules such as SCR 20:1.4 and 20:1.7(b).

Background and rules framework

The opinion interpreted SCR 20:3.7 / Model Rule 3.7 (lawyer as witness) together with the conflict rules SCR 20:1.7 and 20:1.9 / Model Rules 1.7 and 1.9 and the imputation rule SCR 20:1.10 / Model Rule 1.10, contrasting the result with the pre-1988 disqualification rules.

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20:3.7 / Model Rule 3.7 (lawyer as witness)
• Wis. SCR 20:1.7, 20:1.9 / Model Rules 1.7, 1.9 (conflicts)
• Wis. SCR 20:1.10 / Model Rule 1.10 (imputation)

See also

• WI Ethics Op. EF-25-01: Lawyer as Witness
• WI Ethics Op. E-89-3: Lawyer Spouses on Opposite Sides
• WI Ethics Op. E-88-12: Divorce Client and His Company

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-88-6.pdf