A lawyer is representing a client in a complex business litigation. During the trial, it becomes clear that the lawyer possesses unique, firsthand knowledge of a critical factual dispute that occurred prior to the litigation, and the lawyer's testimony would be highly beneficial to the client's case. The client insists that the lawyer testify.
- AThe lawyer must withdraw from the case if the lawyer is likely to be a necessary witness, unless an exception applies.
- BThe lawyer may testify if the client gives informed consent and the lawyer believes the testimony will be beneficial.
- CThe lawyer may testify and continue representation if the judge permits it.
- DThe lawyer may testify if the testimony relates to an uncontested issue or the nature and value of legal services.
Show answer & explanationAnswer & explanation
Correct answer: A. The lawyer must withdraw from the case if the lawyer is likely to be a necessary witness, unless an exception applies.
Rule 3.7 generally prohibits a lawyer from acting as an advocate at a trial in which the lawyer is likely to be a necessary witness. While there are exceptions (such as testimony about an uncontested issue or the nature of legal services), the scenario describes a 'critical factual dispute' where the lawyer's testimony would be 'highly beneficial,' indicating necessity and a contested issue, thus requiring withdrawal unless an exception applies.
Why the other options are wrong
- B. Client consent alone does not override the general prohibition if the lawyer is a necessary witness on a contested issue.
- C. Judicial permission is not a standalone exception to the rule; the rule itself dictates when a lawyer must withdraw.
- D. This states two of the exceptions, but the scenario describes a 'critical factual dispute,' which is typically a contested issue, making these exceptions inapplicable.
Lawyer as Witness Rule
A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless certain exceptions apply.
- Applies if the lawyer's testimony is necessary and relates to a contested issue.
- Exceptions: uncontested issue, nature/value of legal services, substantial hardship to client.
- Often requires withdrawal from representation if no exception applies.
Memory trick: Advocate or witness, choose your role, for both roles at once take a heavy toll.