A lawyer is representing a small business in a dispute with a former employee. The lawyer is also a certified public accountant (CPA) and has personal knowledge of the business's financial records that are central to the dispute. The client wants the lawyer to testify as a fact witness regarding these records, while also continuing to represent the business in the litigation. Is this ethically permissible?
- ANo, unless the lawyer's testimony will substantially benefit the client and no other lawyer can provide similar testimony.
- BYes, if the testimony relates solely to uncontested issues.
- CYes, if the client provides informed consent, confirmed in writing.
- DNo, because the lawyer is likely to be a necessary witness, creating a conflict of interest.
Show answer & explanationAnswer & explanation
Correct answer: D. No, because the lawyer is likely to be a necessary witness, creating a conflict of interest.
Model Rule 3.7 (Lawyer as Witness) generally prohibits a lawyer from acting as an advocate in a trial in which the lawyer is likely to be a necessary witness. While there are exceptions, the general rule aims to prevent confusion for the jury and avoid conflicts between the lawyer's role as advocate and witness. The fact that the lawyer's knowledge is 'central to the dispute' strongly suggests they would be a necessary witness.
Why the other options are wrong
- A. This option misstates an exception; the exception is if disqualification would work substantial hardship on the client, not if the testimony 'substantially benefits' the client and no other lawyer can testify.
- B. Testimony related to uncontested issues is an exception to the rule, but the question states the knowledge is 'central to the dispute,' implying contested issues.
- C. Client consent alone cannot overcome the ethical prohibition if the lawyer is a necessary witness, as the rule protects the integrity of the judicial process and prevents confusion for the jury.
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 the testimony relates to an uncontested issue, relates to the nature and value of legal services, or disqualification of the lawyer would work substantial hardship on the client.
- Generally prohibits lawyer from being both advocate and necessary witness.
- Aims to prevent jury confusion and avoid conflicts.
- Limited exceptions exist.
Memory trick: Advocate or witness, choose one path, don't mix the roles and risk a wrath.