A lawyer is representing a client in a complex commercial litigation. During the trial, it becomes apparent that the lawyer's partner, who is not involved in the case, was a minor, non-essential witness to a side event related to the dispute several years ago. The partner's testimony would be brief, factual, and would not prejudice the client's case. The opposing counsel has indicated they might call the partner as a witness. Under the 'Lawyer as Witness' rule, what is the most appropriate action for the lawyer?
- AThe lawyer must immediately withdraw from the representation, as a partner is a potential witness.
- BThe lawyer can continue the representation, as the partner's testimony is minor and would not prejudice the client.
- CThe lawyer must object to the opposing counsel calling the partner as a witness.
- DThe lawyer must seek the client's informed consent to continue the representation.
Show answer & explanationAnswer & explanation
Correct answer: B. The lawyer can continue the representation, as the partner's testimony is minor and would not prejudice the client.
The 'Lawyer as Witness' rule generally prohibits a lawyer from acting as an advocate in a trial where the lawyer is likely to be a necessary witness. However, this prohibition extends to a lawyer in the firm only if the testimony would be adverse to the client. If the partner's testimony is minor, non-essential, and not adverse to the client, the firm is not disqualified.
Why the other options are wrong
- A. Withdrawal is generally not required if the testimony is minor, not essential, and not adverse to the client, especially when it's a partner and not the trial lawyer.
- C. Objecting to an opposing counsel calling a relevant witness, especially if their testimony is not adverse, is generally not ethically sound and may not be legally permissible if the testimony is admissible.
- D. Client consent is required if the lawyer or a lawyer in the firm is likely to be a necessary witness whose testimony would be adverse to the client, or if there's a conflict of interest. Given the minor, non-adverse nature of the testimony, it's not strictly required unless other conflict rules apply.
Lawyer as Witness Rule (Firm)
A lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness. A lawyer in a firm ordinarily shall not act as advocate in a trial in which another lawyer in the firm is likely to be called as a witness if it would present a conflict of interest for the client.
- Applies if the lawyer (or firm member) is a 'necessary' witness.
- Rule is generally imputed to the firm unless testimony would not be adverse to client.
- Exceptions exist for uncontested issues, nature and value of legal services, or substantial hardship to client.
Memory trick: Advocate's mouth, witness's truth, rarely both.