Under the advocate-witness rule (also referred to as the “lawyer-witness rule” and “attorney-witness rule”), an attorney should not represent a party to a case in which that attorney is likely to be called to testify as a witness at the time of trial. The reasoning behind the advocate-witness rule is that it helps to avoid (i) confusing the jury members regarding the lawyer’s dual role as an advocate and as a witness, (ii) conflicts of interest between the lawyer and the client, and (iii) prejudicing the opposing party.
As explained by the court in Murray v. Metropolitan Life Ins., 583 F.3d 173 (2d Cir. 2009), the advocate-witness rule is designed to alleviate the following 4 risks: “(1) the lawyer might appear to vouch for his own credibility; (2) the lawyer’s testimony might place opposing counsel in a difficult position when she has to cross-examine her lawyer-adversary and attempt to impeach his credibility; (3) some may fear that the testifying attorney is distorting the truth as a result of bias in favor of his client; and (4) when an individual assumes the role of advocate and witness both, the line between argument and evidence may be blurred, and the jury confused.” Id. at 178.
The advocate-witness rule does not result in the lawyer being deemed incompetent to testify at trial. Rather, it grants the trial court discretion to disqualify a lawyer from representing one of the parties to a case before it where that lawyer is likely to testify at the trial as a witness. However, “because courts must guard against the tactical use of motions to disqualify counsel, they are subject to fairly strict scrutiny, particularly motions under [the lawyer-witness rule].” Lamborn v. Ditter, 873 F.2d 522, 531 (2d Cir. 1989). In exercising its discretion to disqualify an attorney under the advocate–witness rule, a court must consider the following factors: (1) whether the attorney’s testimony is, in fact, genuinely needed; (2) the possibility that the opposing counsel is using the motion to disqualify for purely tactical reasons; and (3) the combined effects of the strong interest parties have in representation by counsel of their choice, and in avoiding the duplicate expense and time-consuming effort involved in replacing counsel already familiar with the case.
The scope of the advocate-witness rule is not only limited to the trial, but also includes pretrial proceedings in a case, including discovery. See, e.g., Waite, Schneider, Bayless & Chesley Co., L.P.A. v. Davis, 253 F. Supp. 3d 997, 1018-19 (S.D. Ohio 2015) (“Most courts recognize that an attorney who intends to testify at trial may not participate in any pretrial activities which carry the risk of revealing the attorney’s dual role to the jury. In particular, a testifying attorney should not take or defend depositions.”); Lowe v. Experian, 328 F. Supp. 2d 1122, 1127 (D. Kan. 2004) (applying the advocate-witness rule to disqualify attorney from taking or defending depositions because, “Depositions are routinely used at trial for impeachment purposes and to present testimony in lieu of live testimony when the witness is unavailable. Testimony from an oral deposition could not be easily read into evidence without revealing [counsel’s] identity as the attorney taking or defending the deposition. Videotaped depositions present an even greater concern.”).
REFERENCE DESK
Doe v. Yim, 55 Cal. App. 5th 573, 581-84 (2020):
The “advocate-witness rule,” which prohibits an attorney from acting both as an advocate and a witness in the same proceeding, has long been a tenet of ethics in the American legal system, and traces its roots back to Roman Law. California’s current version of the advocate-witness rule provides, “A lawyer shall not act as an advocate in a trial in which the lawyer is likely to be a witness unless: [¶] (1) the lawyer’s testimony relates to an uncontested issue or matter; [¶] (2) the lawyer’s testimony relates to the nature and value of legal services rendered in the case; or [¶] (3) the lawyer has obtained informed written consent from the client.” (Cal. Rules Prof. Conduct, rule 3.7(a).) A comment to the rule clarifies that the informed consent exception is not absolute: “Notwithstanding a client’s informed written consent, courts retain discretion to take action, up to and including disqualification of a lawyer who seeks to both testify and serve as an advocate, to protect the trier of fact from being misled or the opposing party from being prejudiced.” In other words, a court retains discretion to disqualify a likely advocate-witness as counsel, notwithstanding client consent, where there is a convincing demonstration of detriment to the opponent or injury to the integrity of the judicial process.
Neither California’s advocate-witness rule nor its official comments specify how an advocate-witness’s dual role might mislead the trier of fact or prejudice the opposing party. However, this topic is addressed in an official comment to the rule’s national counterpart, rule 3.7 of the ABA Model Rules of Professional Conduct, addressing why the opposing party or the tribunal may have proper objection to the dual role: “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.” (ABA Model Rules Prof. Conduct, rule 3.7, com. 2.) California courts have agreed that one purpose of the advocate-witness rule is to prevent fact finder confusion regarding whether an advocate-witness’s statement is to be considered proof or argument.
Mercury Vapor Processing Technologies, Inc. v. Village Riverdale, 545 F.Supp.2d 783, 787 (N.D. Ill. 2008):
Under the advocate–witness rule, an attorney is barred from acting as both an advocate and a witness in a single proceeding. This rule has several purposes: (1) it eliminates the possibility that the attorney will not be a fully objective witness; (2) it reduces the risk that the trier of fact will confuse the roles of advocate and witness and erroneously grant testimonial weight to an attorney’s arguments; and (3) it avoids the appearance of impropriety.