In Matthews v. Stolier, litigation arose regarding several transactions, including a power of attorney document. No. 13-6638, 2015 U.S. Dist. LEXIS 171752 (D.C. La. December 23, 2015). Some of the parties retained an attorney that assisted in drafting some of those documents. The opposing party filed a motion to disqualify that attorney due to her participation as a witness in the case. The trial court granted the motion based on Rule of Professional Conduct 3.7. That Rule provides that a lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless: (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.
The court noted that this Rule serves two distinct purposes: protecting the client and protecting the integrity of the court proceeding. The Rule protects clients from a potential conflict of interest, which would occur when an attorney is forced to offer testimony that materially differs from the testimony offered by his client. Additionally, the Rule preserves the integrity of judicial proceedings. Courts have expressed concerns that the role of a witness is inherently different from that of an attorney. “When an attorney is placed in both positions, the Court runs the risk that a jury will assign too much, or possibly too little, weight to the lawyer’s testimony.”
The court held that the circumstances of the negotiations of the transactions would be key to proving several of plaintiffs’ claims, including their fraud, malpractice, and breach of fiduciary duty claims. As the attorney had unique personal knowledge of the circumstances of these negotiations based on her participation as counsel for plaintiffs, the court held that she would be a necessary witness. Finding no applicable exception, the court granted the motion to disqualify the attorney.
Interesting Note: The issue of an attorney acting as an advocate in a case where the attorney is also a witness frequently comes up in fiduciary litigation. Attorneys routinely testify about the wills, powers of attorney, trusts, etc. that they draft and also testify about the client’s mental competence and other facts involving those documents. In Texas, the starting point for a discussion of “Lawyer as Witness” is Texas Rule of Disciplinary Conduct Rule 3.08. provides in pertinent part: (a) A lawyer shall not accept or continue employment as an advocate before a tribunal in a pending adjudicatory proceeding if the lawyer knows or believes that the lawyer is or may be a witness necessary to establish an essential fact on behalf of the lawyer’s client, unless . . . (5) The lawyer has promptly notified opposing counsel that the lawyer expects to testify in the matter and disqualification of the lawyer would work substantial hardship on the client. Rule 3.08(b) prohibits a lawyer from continuing as an advocate if the lawyer believes that he/she will be compelled to give “substantially adverse” testimony (adverse to the lawyer’s client), unless the client consents after full disclosure. If a lawyer is barred from representing a client under either paragraph (a) or (b), Rule 3.08(c) extends the prohibition to other members of the lawyer’s firm unless the client gives informed consent. Rule 3.08 does not prohibit the testifying lawyer from participating in the preparation of the matter as long as the testifying lawyer takes no active role as an advocate before the tribunal. See Rule 3.08, cmt. 8. Generally, if the lawyer is also an advocate, he/she must step aside: a) if the lawyer knows or believes that the lawyer is or may be a witness; b) necessary to establish an essential fact on behalf of his or her client; c) unless prompt notification has been given to opposing side and disqualification would work a substantial hardship on the client; and d) in any event, the lawyer must first obtain the client’s informed consent before testifying.