Professional Guidelines

An agency of the Supreme Court of Virginia

The Virginia State Bar

Professional Guidelines

Rule 3.7

Lawyer As Witness

  • (a) A lawyer shall not act as an advocate in an adversarial proceeding in which the lawyer is likely to be a necessary witness except where:
    • (1) the testimony relates to an uncontested issue;
    • (2) the testimony relates to the nature and value of legal services rendered in the case; or
    • (3) disqualification of the lawyer would work substantial hardship on the client.
  • (b) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that the lawyer may be called as a witness other than on behalf of the client, the lawyer may continue the representation until it is apparent that the testimony is or may be prejudicial to the client.
  • (c) A lawyer may act as advocate in an adversarial proceeding in which another lawyer in the lawyer's firm is likely to be called as witness unless precluded from doing so by Rule 1.7 or 1.9.

Comment

[1] Combining the roles of advocate and witness can prejudice the opposing party and can involve a conflict of interest between the lawyer and client.

[2] The opposing party has proper objection where the combination of roles may prejudice that party's rights in the litigation. A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate witness should be taken as proof or as an analysis of the proof.

[3] Paragraph (a)(1) recognizes that if the testimony will be uncontested, the ambiguities in the dual role are purely theoretical. Paragraph (a)(2) recognizes that where the testimony concerns the extent and value of legal services rendered in the action in which the testimony is offered, permitting the lawyers to testify avoids the need for a second trial with new counsel to resolve that issue. Moreover, in such a situation the judge has firsthand knowledge of the matter in issue; hence, there is less dependence on the adversary process to test the credibility of the testimony.

[4] Apart from these two exceptions, paragraph (a)(3) recognizes that a balancing is required between the interests of the client and those of the opposing party. Whether the opposing party is likely to suffer prejudice depends on the nature of the case, the importance and probable tenor of the lawyer's testimony, and the probability that the lawyer's testimony will conflict with that of other witnesses. Even if there is risk of such prejudice, in determining whether the lawyer should be disqualified, due regard must be given to the effect of disqualification on the lawyer's client. It is relevant that one or both parties could reasonably foresee that the lawyer would probably be a witness. The principle of imputed disqualification stated in Rule 1.10 has no application to this aspect of the problem.

[5] ABA Model Rule Comments not adopted.

[6] Whether the combination of roles involves an improper conflict of interest with respect to the client is determined by Rule 1.7 or 1.9. For example, if there is likely to be substantial conflict between the testimony of the client and that of the lawyer or a member of the lawyer's firm, the representation is improper. The problem can arise whether the lawyer is called as a witness on behalf of the client or is called by the opposing party. Where a lawyer may be called as a witness other than on behalf of the client, paragraph (b) allows the lawyer to continue representation until it becomes apparent that the testimony may be prejudicial to the client. Determining whether or not such a conflict exists is primarily the responsibility of the lawyer involved. See Comment to Rule 1.7. If a lawyer who is a member of a firm may not act as both advocate and witness by reason of conflict of interest, Rule 1.10 disqualifies the firm also.

Virginia Code Comparison

With regard to paragraph (a), DR 5101(B) prohibited a lawyer, or the lawyer's firm, from serving as advocate if the lawyer "knows or it is obvious that he or a lawyer in his firm ought to be called as a witness" unless "(1) . . . the testimony will relate solely to an uncontested matter or to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony; (2) . . . the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or his firm to the client; (3) . . . refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case." Similarly, DR 5-102(A) stated: "If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in DR 5-101(B)(1) through (3)," quoted above.

Paragraph (b) is substantially the same as DR 5-102(B).

Paragraph (c) had no counterpart in the Virginia Code.

Committee Commentary

The Committee concluded that the test in the ABA Model Rule, i.e., whether a lawyer "is likely to be a necessary witness," is more instructive than that in DR 5-101(B), i.e., whether the lawyer "knows or it is obvious that he . . . ought to be called as a witness." The Committee did, however, conclude that the ABA Model Rule should be modified to apply not just to trials but to any "adversarial proceeding." Additionally, the ABA Model Rule applies only to individual lawyers and not, in general, to an entire firm--providing a flexibility which the Committee believed is needed. Additionally, the Committee incorporated the language of DR 5-102(B) as paragraph (b) to give the Rule additional flexibility. With respect to paragraph (b), the Committee deleted the DR 5-102(B)'s reference to "a lawyer in his firm" since that situation is now addressed by paragraph (c) and the conflicts provisions of these Rules.

Updated: October 30, 2009