ACTEC COMMENTARIES ON THE MODEL RULES OF PROFESSIONAL CONDUCT
MRPC 3.7
Lawyer as Witness.
(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:
(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.
(b) A lawyer may act as advocate in the trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.
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ACTEC COMMENTARY ON MRPC 3.7
Rule 3.7 is intended to avoid or eliminate not only possible conflicts of interest between lawyer and client but also situations in trial that may prejudice the opposing party when the lawyer combines or intermingles his or her role as an advocate with that as a witness.
The first two exceptions to acting as an advocate at trial when the lawyer is "likely to be a necessary witness" are straightforward and uncontroversial. Exception two is commonly encountered in estate, trust and protective proceedings where the reasonableness of the attorney's compensation for legal services may be an issue and testimony by the lawyer(s) involved is required to resolve the dispute. The third or "substantial hardship" exception involves a balancing of the interests of the client in keeping his or her counsel (despite counsel's involvement as a witness) and the possible prejudice to the opposing party. In determining prejudice, the trier of fact will look to the nature of the case, the importance and probable tenor of the lawyer's testimony and the probability that the lawyer's testimony may conflict with that of other witnesses. However, even if a risk of prejudice to the opposing party exists, the court will nevertheless consider the negative effects of disqualification on the lawyer's client. In applying this Rule, the principle of imputed disqualification (MRPC 1.10: Imputed Disqualification: General Rule) does not apply.
MRPC 1.7 (Conflict of Interest: General Rule) and MRPC 1.9 (Conflict of Interest: Former Client) often come into play. "For example, if there is likely to be substantial conflict between the testimony of the client and that of the lawyer or a member of the lawyer's firm, the representation is improper. The problem can arise whether the lawyer is called as a witness on behalf of the client or is called by the opposing party." Comment, MRPC 3.7.
Problems implicating MRPC 3.7 typically arise in such estate and trust litigation matters as will contests, surcharge actions, will and trust interpretation cases involving extrinsic evidence, disputes among heirs and beneficiaries and, sometimes, tax litigation. The estates and trusts lawyer who is likely to be a "necessary witness" in a trial involving his or her client must carefully parse the decisions involving lawyer and law firm disqualification under MRPC 3.7 as well as the cases arising under MRPC 1.7 (Conflict of Interest: General Rule) and MRPC 1.9 (Conflict of Interest: Former Client).
ANNOTATIONS
(Refer to Caveat)
See also the Annotations following the ACTEC Commentaries on MRPC 1.7 (Conflict of Interest: General Rule) and MRPC 1.9 (Conflict of Interest: Former Client).
: Cases
Delaware:
Estate of Waters, 647 A.2d 1091 (Del. 1994). In this case the Supreme Court of Delaware ruled that the trial court had committed "plain error" by allowing an attorney to appear in a will contest both as trial advocate on behalf of the estate and as a necessary witness testifying on the contested issues of undue influence and testamentary capacity. The court observed:
Under the facts of this case, the centrality of [the lawyer's] testimony to the contested issues of undue influence and testamentary capacity mandated his withdrawal as trial attorney. [Citations omitted.] Unlike other members of the Delaware Bar confronted by the same ethical obligation in the past, [the lawyer] failed to recognize his duty as a lawyer/witness to withdraw, even after opposing counsel called it to his attention. 647 A.2d at 1098.
Florida:
Devins v. Peitzer, 622 So. 2d 558 (Fla. App. 1993). In this will contest the court refused to disqualify the estate's lawyer solely because the contestants had announced their intention to call the lawyer as an adverse witness on their own behalf. The court found that Rule 3.7 was not designed to permit a party to disqualify opposing counsel merely by calling him or her as a witness.
Nebraska:
State ex rel. Nebraska State Bar Ass'n v. Neumeister, 449 N.W.2d 17 (Neb. 1989). A lawyer was disciplined for failing to withdraw from representation of a client, now in a nursing home, the relatives of whom had petitioned for conservatorship, when the lawyer knew he would be a material witness for the client concerning her mental capacity.
New York:
Bingham v. Zolt, 823 F. Supp. 1126 (S.D.N.Y. 1993). A lawyer acting as ancillary administrator of a deceased singer's estate was permitted to testify in an estate's civil RICO action against the singer's former legal and financial advisors since the lawyer was not representing the estate in the RICO action.
Pennsylvania:
Pew Trust (2), 16 Fid. Rep. 2d 80 (O.C. Montg. Cty (Pa.) 1995). The Pennsylvania Orphans Court granted the petition of certain trust beneficiaries to disqualify the law firm representing the trustee in related actions challenging, among other things, the prudence of the trustee's reliance on certain tax and legal opinions previously rendered by the law firm to support a material corporate transaction entered into by the trustee. The court found that certain of the firm's lawyers were "likely to be called as necessary witnesses" and that the firm and its lawyers must be disqualified from trying the case. Although the court acknowledged that the law firm had never served as counsel for the trust's beneficiaries and, consequently, the firm's only client was the trustee, disqualification of the entire firm was warranted in light of the "derivative" duties owed by the law firm to the trust's beneficiaries. Pew, supra, at 84-85 (citing extensively to the ACTEC Commentary on MRPC 1.2).
Virginia:
Estate of Andrews v. U.S., 804 F. Supp. 820 (E.D. Va. 1992). The court disqualified counsel for the estate from representing the estate in a tax refund action where counsel's law partner not only was a party to the action in his representative capacity as a co-executor of the will but also was to be called to testify as a material witness at trial.
West Virginia:
State ex rel. DeFrances v. Bedell, 446 S.E.2d 906 (W.Va. 1994). This case is discussed in the Annotations following the ACTEC Commentary on MRPC 1.7.
Ethics Opinion:
Texas:
Op. 439 (1987). An attorney prepared a will, signed by two witnesses, and acted as notary thereof. After filing the will for probate and acting as counsel for the petitioner, a contest of the will was filed claiming that the document was not executed in accordance with the applicable law and that the testator did not have testamentary capacity. Contestant filed a motion to disqualify the attorney who had prepared and notarized the will, and the issue presented was whether or not the attorney should be disqualified from continuing to act as attorney for the executor (who was also the sole beneficiary under the will). The Texas Committee on Professional Ethics held that the attorney could not continue to act under these circumstances (following Texas Opinion 234 (1961), holding that the law partner of a lawyer who had drafted a will, deed and contract for a client, the validity of which instruments were attacked after the client's death on grounds of fraud, undue influence and mental incapacity of the client, could not serve as counsel since the lawyer knew his partner would be a material witness).
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