If a Washington lawyer must testify as a witness at trial, can the lawyer keep working on the client's matter and bill for that work?
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This page answers the general question as of 1986. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
A lawyer who had been representing a client determined that it would be necessary to testify as a witness at a trial concerning that matter. The question was how far the lawyer-as-witness rule, RPC 3.7, reached beyond the trial itself.
The committee was of the opinion that the rules would not prohibit the lawyer from continuing to represent the client in matters separate and distinct from the court trial. Nor would they prohibit the lawyer from providing legal research, legal opinions, court papers, settlement agreements, and other legal work to the trial attorney. The committee further concluded that the lawyer could bill for the continued services and for time spent testifying at trial.
Currency note
This opinion was issued in 1986, before the 2006 revisions to the Washington Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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: If a lawyer will be a witness at trial, can the lawyer still handle other parts of the client's matter?
A: Under this 1986 opinion, yes. The committee concluded the rules did not prohibit continuing to represent the client in matters separate and distinct from the court trial.
Q: Can a lawyer-witness still support the trial attorney behind the scenes?
A: Yes. The committee said the lawyer could provide legal research, legal opinions, court papers, settlement agreements, and other legal work to the trial attorney.
Q: Can the lawyer bill for that work and for testifying?
A: Yes. The committee was of the opinion that the lawyer could bill for the continued services and for time spent testifying at trial.
Background and rules framework
RPC 3.7, Washington's version of ABA Model Rule 3.7, addresses when a lawyer who is likely to be a necessary witness may act as an advocate at a trial. The committee read the rule to bar the advocacy role at the trial but not to prevent the lawyer from continuing other representation of the client, supporting the trial attorney, or billing for that work.
Citations and references
Rules of Professional Conduct:
- ABA Model Rule 3.7 (lawyer as witness)
- Washington RPC 3.7
See also
- AL Ethics Op. 1991-19: Lawyer-as-Witness and Pre-Trial Work
- Alaska Ethics Op. 86-5: Lawyer as Witness, Duty to Withdraw
Source
- Landing page: https://ao.wsba.org/print.aspx?ID=114
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
The Committee was of the opinion that after you had been representing a client, and you determined that it would be necessary for you to testify as a witness at a trial concerning that matter, the Rules of Professional Conduct would not prohibit you from continuing to represent the client in matters separate and distinct from the court trial. Neither would you be prohibited from providing legal research, legal opinions, court papers, settlement agreements, and other legal work to the trial attorney. The Committee was of the further opinion that you could bill for your continued services and for your time for testifying at trial.
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