If a lawyer will be a witness at trial, what tasks can the lawyer still perform in the case under the advocate-witness rule?
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This page answers the general question as of 1988. 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
The inquiry concerned the actions a lawyer may perform when the lawyer would be a witness at trial. The committee was generally of the opinion that, unless the conduct fell within one of the exclusions set out in RPC 3.7, the lawyer must decline to undertake the representation if it is apparent the lawyer will be called as a witness by either side. If the representation is already underway, the lawyer must withdraw as soon as it becomes obvious the lawyer will be called as a witness on the client's behalf.
Answering the specific questions, the committee was of the opinion that a lawyer could not argue pre-trial motions to the court if the motion in any way dealt with, or could be interpreted to deal with, the lawyer's testimony as a witness. If the motion involved a purely legal question unrelated to the lawyer's testimony, the committee thought that would be in the nature of briefing, preparing court papers, and attending settlement conferences, which RPC 3.7 would not preclude. The committee was further of the opinion that a lawyer who was a witness could not argue motions during trial outside the hearing of the jury, nor conduct examination of witnesses during the trial, even if the lawyer did not argue the case to the jury.
Currency note
This opinion was issued in 1988, before the 2006 revisions to the Washington Rules of Professional Conduct. The rule it discusses, RPC 3.7 (lawyer as witness), corresponds to Model Rule 3.7 and has since been amended. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.
Common questions
Q: If a lawyer expects to be a witness, must the lawyer decline or withdraw?
A: Per the opinion, yes, absent an RPC 3.7 exclusion. The committee said the lawyer must decline if it is apparent the lawyer will be called as a witness by either side, and must withdraw once it becomes obvious the lawyer will be called as a witness on the client's behalf.
Q: Can the lawyer still argue pre-trial motions?
A: Per the opinion, not if the motion in any way deals with or could be interpreted to deal with the lawyer's testimony. The committee said a motion on a purely legal question unrelated to the testimony would be in the nature of briefing and court papers and would not be precluded by RPC 3.7.
Q: Can the lawyer-witness argue motions or examine witnesses during the trial?
A: No. The committee was of the opinion that a lawyer who was a witness could not argue motions during trial outside the hearing of the jury, nor conduct examination of witnesses during the trial, even if the lawyer did not argue the case to the jury.
Background and rules framework
The opinion applies Washington RPC 3.7 (lawyer as witness), corresponding to Model Rule 3.7. The committee drew the line at the lawyer's testimony: tasks that touch the testimony (declining or withdrawing as trial advocate, arguing motions related to the testimony, arguing trial motions outside the jury's hearing, examining witnesses at trial) are precluded unless an exclusion applies, while purely legal work unrelated to the testimony, such as briefing, preparing court papers, and attending settlement conferences, is not.
Citations and references
Rules of Professional Conduct:
- Washington RPC 3.7 (lawyer as witness), corresponding to Model Rule 3.7.
See also
- WSBA Ethics Op. 1042: firm litigation against a former client where firm lawyers would be witnesses
- WSBA Ethics Op. 998: a lawyer testifying for impeachment while a firm colleague tries the case
- WSBA Ethics Op. 1041: representing a fellow firm lawyer in that lawyer's own litigation
Source
- Landing page: https://ao.wsba.org/print.aspx?ID=307
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
Advisory Opinion: 1227
Year Issued: 1988
RPC(s): RPC 3.7
Subject: Lawyer as witness; extent of representation permitted
The Committee considered your inquiry concerning actions that may be performed by a lawyer who would be a witness at a trial. The Committee was generally of the opinion that unless such conduct fell within one of the exclusions set out in RPC 3.7, the lawyer must decline to undertake the representation if it is apparent that the lawyer will be called as a witness by either side. If the representation is already underway, the lawyer must withdraw as soon as it becomes obvious that the lawyer will be called as a witness on the client's behalf.
In response to your specific questions, the Committee was of the opinion that a lawyer could not argue pre-trial motions to the court if the motion in any way dealt with or could be interpreted to deal with the lawyer's testimony as a witness. However, if the motion involved a purely legal question unrelated to the lawyer's testimony, then the Committee thought that would be in the nature of briefing, preparing court papers and attending settlement conferences, which would not be precluded by Rule 3.7. The Committee was of the opinion that a lawyer who was a witness could not argue motions during trial outside the hearing of the jury, nor conduct examination of witnesses during the trial even if the lawyer did not argue the case to the jury.
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