Can an in-house lawyer who represents the company in a lawsuit also testify as a witness in that case?

Plain-English summary

The committee addressed two sets of facts. In the first, a lawyer who was house counsel for a corporation and represented the corporation in litigation also testified as a witness in that litigation. The committee concluded that such conduct would be prohibited by RPC 3.7.

In the second, a lawyer was appearing pro se, representing only himself. The committee concluded that the lawyer had the same right to represent himself as any pro se party. The committee did not address whether a partner or member of a corporation could represent the entity pro se, because that issue was not presented.

The committee also pointed to two Washington cases as references that might aid the inquirer in the future: In re Thorstensen's Estate and Levas v. Dewey.

Currency note

This opinion was issued in 1985, 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 Treat this page as historical context, not current guidance.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: Can in-house counsel both represent the company in a case and testify as a witness?

A: No. The committee concluded that house counsel who represents the corporation in litigation and also testifies as a witness in that litigation would be prohibited by RPC 3.7.

Q: Does the lawyer-as-witness rule stop a lawyer from representing himself?

A: No. The committee concluded that a lawyer appearing pro se, representing only himself, has the same right to represent himself as any pro se party.

Q: Did the committee decide whether a partner could represent the firm or corporation pro se?

A: No. The committee said it did not address whether a partner or member of a corporation could represent the entity pro se, because that issue was not presented.

Background and rules framework

The opinion applies RPC 3.7, Washington's lawyer-as-witness rule (the analog of Model Rule 3.7), which generally bars a lawyer from acting as advocate at a trial in which the lawyer is likely to be a necessary witness. The committee applied that bar to house counsel who both represents the corporation and testifies, while treating a lawyer's self-representation as outside the rule.

Citations and references

Rules of Professional Conduct:

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

Cases:

• In re Thorstensen's Estate, 28 Wn.2d 837, 184 P.2d 255 (Wash. 1947): cited by the committee as a reference.
• Levas v. Dewey, 33 Wn.2d 232, 205 P.2d 356, 213 P.2d 913 (Wash. 1949): cited by the committee as a reference.

See also

• WSBA Ethics Op. 1003: lawyer as witness and continued representation outside trial
• ABA Formal Op. 98-410: lawyer as director of a client corporation

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=41

Original opinion text

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

Advisory Opinion: 930
Year Issued: 1985
RPC(s): RPC 3.7
Subject: Lawyer as witness; in-house counsel

The Committee was of the opinion that, concerning the first set of facts wherein a lawyer who was house counsel for a corporation and representing the corporation in litigation also testified as a witness in that litigation, such conduct would be prohibited by RPC 3.7. However, under the second set of facts presented, wherein a lawyer was appearing pro se, representing only himself, the Committee was of the opinion that the lawyer had the same right to represent himself as any pro se party. The Committee did not address the issue of whether a partner or member of a corporation could represent the entity pro se, since that issue was not presented. The Committee requested that I direct your attention to two cases which may aid you in the future. They are In re Thorstensen's Estate, 28 Wn.2d 837, 184 P.2d 255 (1947) and Levas v. Dewey, 33 Wn.2d 232, 205 P.2d 356, 213 P.2d 913 (1949).