(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.

Background

The Louisiana Supreme Court adopted this rule on January 20, 2004. It became effective on March 1, 2004, and has not been amended since. This rule is identical to ABA Model Rule of Professional Conduct 3.7 (2002).

Comments to ABA Model Rule 3.7

Generally

[1] Combining the roles of advocate and witness can prejudice the tribunal and the opposing party and can also involve a conflict of interest between the lawyer and client.

Advocate-Witness Rule

[2] The tribunal has proper objection when the trier of fact may be confused or misled by a lawyer serving as both advocate and witness. The opposing party has proper objection where the combination of roles may prejudice that party’s rights in the litigation. A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof.

[3] To protect the tribunal, paragraph (a) prohibits a lawyer from simultaneously serving as advocate and necessary witness except in those circumstances specified in paragraphs (a)(1) through (a)(3). Paragraph (a)(1) recognizes that if the testimony will be uncontested, the ambiguities in the dual role are purely theoretical. Paragraph (a)(2) recognizes that where the testimony concerns the extent and value of legal services rendered in the action in which the testimony is offered, permitting the lawyers to testify avoids the need for a second trial with new counsel to resolve that issue. Moreover, in such a situation the judge has firsthand knowledge of the matter in issue; hence, there is less dependence on the adversary process to test the credibility of the testimony.

[4] Apart from these two exceptions, paragraph (a)(3) recognizes that a balancing is required between the interests of the client and those of the tribunal and the opposing party. Whether the tribunal is likely to be misled or the opposing party is likely to suffer prejudice depends on the nature of the case, the importance and probable tenor of the lawyer’s testimony, and the probability that the lawyer’s testimony will conflict with that of other witnesses. Even if there is risk of such prejudice, in determining whether the lawyer should be disqualified, due regard must be given to the effect of disqualification on the lawyer’s client. It is relevant that one or both parties could reasonably foresee that the lawyer would probably be a witness. The conflict of interest principles stated in Rules 1.7, 1.9 and 1.10 have no application to this aspect of the problem.

[5] Because the tribunal is not likely to be misled when a lawyer acts as advocate in a trial in which another lawyer in the lawyer’s firm will testify as a necessary witness, paragraph (b) permits the lawyer to do so except in situations involving a conflict of interest.

Conflict of Interest

[6] In determining if it is permissible to act as advocate in a trial in which the lawyer will be a necessary witness, the lawyer must also consider that the dual role may give rise to a conflict of interest that will require compliance with Rules 1.7 or 1.9. For example, if there is likely to be substantial conflict between the testimony of the client and that of the lawyer the representation involves a conflict of interest that requires compliance with Rule 1.7. This would be true even though the lawyer might not be prohibited by paragraph (a) from simultaneously serving as advocate and witness because the lawyer’s disqualification would work a substantial hardship on the client. Similarly, a lawyer who might be permitted to simultaneously serve as an advocate and a witness by paragraph (a)(3) might be precluded from doing so by Rule 1.9. The problem can arise whether the lawyer is called as a witness on behalf of the client or is called by the opposing party. Determining whether or not such a conflict exists is primarily the responsibility of the lawyer involved. If there is a conflict of interest, the lawyer must secure the client’s informed consent, confirmed in writing. In some cases, the lawyer will be precluded from seeking the client’s consent. See Rule 1.7. See Rule 1.0(b) for the definition of “confirmed in writing” and Rule 1.0(e) for the definition of “informed consent.”

[7] Paragraph (b) provides that a lawyer is not disqualified from serving as an advocate because a lawyer with whom the lawyer is associated in a firm is precluded from doing so by paragraph (a). If, however, the testifying lawyer would also be disqualified by Rule 1.7 or Rule 1.9 from representing the client in the matter, other lawyers in the firm will be precluded from representing the client by Rule 1.10 unless the client gives informed consent under the conditions stated in Rule 1.7.

Annotations

Generally

Paragraph (a) prohibits a lawyer from acting as an advocate at trial when the lawyer is likely to be a “necessary witness.” La. Rules of Prof’l Conduct R. 3.7(a) (2004). Courts typically consider a lawyer to be a “necessary” witness if the lawyer’s testimony is “relevant, material, and unobtainable elsewhere.” See ABA Annotated Model Rules of Professional Conduct 384-85 (5th ed. 2003); see also Restatement (Third) of the Law Governing Lawyers § 108 cmt. (2000) (stating that a tribunal should not permit party to call opposing trial lawyer as witness when testimony would be “merely cumulative of evidence readily available by less intrusive means”). Note that the Restatement does not use “necessity” as the touchstone for disqualification. Rather, the Restatement would call for an advocate-lawyer’s disqualification if the lawyer’s testimony was “material to establishing a claim or defense of the client,” and the client has not consented to the lawyer’s failure to testify. Restatement (Third) of the Law Governing Lawyers § 108(1)(b) (2000).

The rule set forth in paragraph (a) is a rule of professional conduct–not a rule of witness competence. Therefore, it does not bear on whether a lawyer-advocate is competent to serve as a trial witness, but rather, on whether a trial witness is permitted to serve as an advocate. As the Louisiana First Circuit Court of Appeals has held, “[t]here is nothing in the Rules of Professional Conduct or the Louisiana Code of Evidence providing that an attorney is not a competent witness in a trial in which he represents a party to the litigation.” See Jordan v. Intercontinental Bulktank Corp., 621 So. 2d 1141, 1148-49 (La. Ct. App. 1st Cir. 1993).

Finally, paragraph (a) only prohibits a lawyer from acting as an advocate at trial. The advocate-lawyer still may handle pretrial matters without being disqualified. See ABA Annotated Model Rules of Professional Conduct 387-88 (5th ed. 2003); see also State v. Marinello, 49 So. 3d 488, 506-07 (La. Ct. App. 3rd Cir. 2010) (describing lawyer’s involvement in criminal grand jury proceedings as a pretrial matter); In re Phenylpropanolamine Products Liability Litigation, Fuller v. Whitehall-Robbins Healthcare, No. MDL 1407, 2006 WL 2473484 (W.D. Wash. Aug. 28, 2006) (holding that Rule 3.7 “relates to testimony at trial, not at the summary judgment stage”); see also, LSBA Public Opinion 05-RPCC-007 (2005). (“[T]he lawyer-witness is not barred from representing the client prior to trial, but he may do so only with the client’s informed consent and only so long as it appears his testimony would not be prejudicial to his client.”) (citing ABA Informal Ethics Opinion 89-1529 (1989)). Under these circumstances, the lawyer’s dual role presents no risk of confusion and prejudice at trial. See Model Rules of Prof’l Conduct R. 3.7 cmt. 2 (2004). But see Adcock v. Ewing, 57 So. 3d 434, 441 (La. Ct. App. 2nd Cir. 2011) (holding that Rule 3.7 is applicable to summary judgment proceedings) (citing Franklin Credit Mgmt. Corp. v. Gray, 2 So. 3d 598 (La. Ct. App. 4th Cir. 2009)).

Exceptions

Paragraphs (a)(1) through (a)(3) set forth three exceptions to the general rule that a lawyer may not serve as both advocate and witness. First, a lawyer may testify on an uncontested issue. La. Rules of Prof’l Conduct R. 3.7(a)(1) (2004). Second, a lawyer may testify about the nature and value of the legal services that the lawyer has provided, for example, when a claimant seeks an award of attorneys’ fees. Id. Rule 3.7(a)(2); see also Adcock, 57 So. 3d at 440-41 (holding that a lawyer’s affidavit submitted for summary judgment describing a clerical error in regards to the filing of a court document related to the “nature of … legal services”) (quoting Rule 3.7(a)(2)). Third, a lawyer may testify if disqualification would work substantial hardship on the lawyer’s client. La. Rules of Prof’l Conduct R. 3.7(a)(3); see, e.g., Nicholas v. Nicholas, 923 So. 2d 690, 695 (La. Ct. App. 1st Cir. 2005) (holding that it would have caused substantial hardship on a client to prevent lawyer from testifying on her behalf when she fell ill on the date of the hearing). Louisiana courts note 3.7(a)(3) exceptions are rare and occur only in “extraordinary circumstances.” See Franklin Credit Mgmt. Corp. v. Gray, 2 So. 3d 598, 605 (La. Ct. App. 4th Cir. 2009) (citing Nicholas as an “extraordinary circumstance”). The factors that courts have considered in evaluating whether disqualification would cause hardship on the client include, but are not limited to, the following: the time and money invested by the client in the lawyer; the timing of the filing of the motion to disqualify; and whether the necessity of calling the lawyer as a witness was foreseeable. See ABA Annotated Model Rules of Professional Conduct at 388-89 (5th ed. 2003). The trial judge is vested with much discretion regarding the application of this hardship exception. See Exnicios v. Saunders, 448 So. 2d 751, 752 (La. Ct. App. 4th Cir. 1984).

This rule does not disqualify a lawyer from representing himself pro se in a matter in which the lawyer is a litigant. In Farrington v. Law Firm of Sessions, Fishman, 687 So. 2d 997 (La. 1997), the Louisiana Supreme Court squarely held that “Rule 3.7 does not apply to the situation where the lawyer is representing himself.” See also Jackson v. Adcock, 2004 U.S. Dist. LEXIS 14222 (E.D. La. Jul. 22, 2004).

Disqualification is Nonwaivable

Because the problems arising from a lawyer serving as advocate and witness can prejudice not only the “opposing party,” see Model Rules of Prof’l Conduct R. 3.7 cmt. 1, but also the system of justice by causing jury confusion, the mandate of this rule is generally not waivable by the client. See, e.g., Freeman v. Vicchiarelli, 827 F. Supp. 300 (D.N.J. 1993). Note, however, that the Restatement would permit an advocate-lawyer to testify with the consent of both the lawyer’s client and the “opposing parties who would be adversely affected by the lawyer’s testimony.” Restatement (Third) of the Law Governing Lawyers § 108(2)(c) (2000).

No Imputation

Paragraph (b) provides that a lawyer may act as an advocate in a trial even though a partner or associate from the lawyer’s firm is likely to be called as a witness. La. Rules of Prof’l Conduct R. 3.7(b) (2004). Because the disqualification imposed by this rule is not imputed to a lawyers’ firm, a litigator at a firm, for example, may freely call as a trial witness the transactional partner who drafted a contract that is the subject of litigation. However, if the advocate-lawyer’s partner will testify in a manner adverse to the client, this may give rise to a conflict of interest under Rules 1.7 and 1.9. For example, a potentially disqualifying Rule 1.7 conflict would exist if the advocate-lawyer’s representation of the client was materially limited by friendship with the witness-lawyer. See La. Rules of Prof’l Conduct R. 1.7(b) (2004).

Disciplinary Sanctions

This rule is typically invoked in the context of motions to disqualify lawyers rather than in the context of disciplinary proceedings. However, a lawyer who violates this rule certainly is subject to discipline. For the disciplinary sanctions that are appropriate for lawyers’ failure to avoid conflicts of interest, see supra Annotations to Louisiana Rule of Professional Conduct 1.7.

Notes

This page was updated on January 18, 2017.

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