Does the lawyer-as-witness rule apply to private labor arbitration and unfair-labor-practice hearings, and does it bind an advocate who is not a Washington bar member?

Plain-English summary

The inquiry asked whether the requirements of RPC 3.7 applied to private arbitration hearings under collective bargaining agreements and/or unfair-labor-practice hearings. The committee was of the unanimous opinion that the term "trial" in that rule applies to such administrative proceedings.

The committee was further of the opinion that Washington's rule would not apply if the lawyer acting as the advocate was not a member of the Washington Bar, nor would it, in those circumstances, prohibit a Washington lawyer from acting as a witness.

Currency note

This opinion was issued in 1989, before the Washington State Bar Association's adoption of 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 Treat this page as historical context, not current guidance.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: Does RPC 3.7 reach labor arbitration and unfair-labor-practice hearings?

A: Under this 1989 opinion, yes. The committee unanimously read "trial" in RPC 3.7 to apply to such administrative proceedings.

Q: Does the rule bind an advocate who is not a Washington bar member?

A: No. The committee said Washington's rule would not apply if the advocate was not a member of the Washington Bar.

Q: In that situation, can a Washington lawyer testify as a witness?

A: Yes. Where the advocate is not a Washington bar member, the rule would not prohibit a Washington lawyer from acting as a witness.

Background and rules framework

RPC 3.7, Washington's version of ABA Model Rule 3.7, generally bars a lawyer from acting as advocate at a trial in which the lawyer is likely to be a necessary witness, with exceptions. The committee construed "trial" to include private labor arbitrations and unfair-labor-practice hearings, but tied the rule's application to whether the advocate is a Washington bar member, so that a non-Washington advocate is outside the rule and a Washington lawyer may then serve as a witness.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 3.7 (lawyer as witness)
• Washington RPC 3.7

See also

• WA Ethics Op. 1303: Casual Conversation with Prospective Jurors
• WA Ethics Op. 1301: Court-Ordered Continued Representation

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=386

Original opinion text

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

The Committee reviewed your inquiry concerning whether the requirements of RPC 3.7 applied to private arbitration hearings under collective bargaining agreements and/or unfair labor practice hearings and was of the unanimous opinion that the term "trial" in that rule applies to such administrative proceedings. The Committee was further of the opinion that Washington's rule would not apply if the lawyer acting as the advocate was not a member of the Washington Bar, nor would it, in those circumstances, prohibit a Washington lawyer from acting as a witness.