The Lawyer as Witness: RPC Rule 3.7 County Attorneys Summer Conference Frayda Bluestein & Norma Houston July 14, 2017 RPC Rule 3.7 (a) 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. (b) A lawyer may act as advocate in a 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. Purpose Avoid confusion for trier of fact UNC School of Government www.sog.unc.edu Page 1
Purpose Witness Offers proof based on personal knowledge Lawyer Offers analysis of witness proof Three Dimensions of the Rule Ethical Procedural Evidentiary Ethical Ethical rules designed to shape attorney behavior Judge makes ruling but rule requires attorneys to flag situations and withdraw from participation when appropriate Note overlap with conflict of interest rules (1.7 and 1.9) UNC School of Government www.sog.unc.edu Page 2
Necessity of the Evidence Lawyer must make good faith evaluation of whether testimony will be relevant, material, and unobtainable elsewhere Evaluation must be ongoing N.C. State Bar 2011 FEO 1 Procedural Focus is on trial and effect on trier of facts Judge manages roles of attorneys and witnesses to maintain integrity of process Must balance rights of parties and of attorney to represent her client Evidentiary Focus is on nature of evidence and whether evidence is necessary Recognizes attorney testimony may be impeachable due to client relationship Exception recognizes uncontested facts and testimony about legal services rendered not a problem Recognizes client s interests under substantial hardship standard UNC School of Government www.sog.unc.edu Page 3
Substantial Hardship Balancing interests of client and those of tribunal and opposing party Factors include Complexity of case Familiarity with client and case Available of substitute counsel Cost and time Possibility of mitigating by granting continuation Tactical Use of the Rule Attorney may be named by opposing counsel Must do more than just assert necessity Judges must balance interests to prevent tactical disqualification to detriment of represented party Scope of Disqualification Does not disqualify firm Does not prevent work outside of the trial Could apply to pretrial attorney testimony in affidavits or depositions if introduced at trial UNC School of Government www.sog.unc.edu Page 4
Procedural Considerations Rule applies whether attorney is called by opposing counsel or on behalf of own client Motion to disqualify can be made pre-trial; judge may delay ruling to better determine necessity of evidence Appeal can be interlocutory (affects substantial right of party and attorney) Ethical and Practical Considerations Lawyer witness more easily impeachable for interest may be less effective witness Advocate who is also witness is ineffective in arguing his own credibility Raises questions of impairment of obligation of competence that lawyer owes client Ethical and Practical Considerations Firm not automatically disqualified - consider conflicts and potential for waiver of attorney-client privilege Include a third party when interviewing or meeting with people to avoid being only person with knowledge of the evidence UNC School of Government www.sog.unc.edu Page 5
Considerations for County Attorneys In-house counsel may be more likely to have relevant evidence Availability of insurance counsel may mitigate Frequency of insurance counsel may favor disqualification less likely to be seen as detriment to client Consider application of rule in quasi-judicial proceedings where attorneys may present mixture of arguments on law and evidence What s Your Experience?? Have you ever testified as a witness?? How was it different from serving as a lawyer?? Any advice on prepping to be a witness? GOOD LUCK! UNC School of Government www.sog.unc.edu Page 6