Must I Withdraw Because I May Be a Witness?

Witness-Chair

Not necessarily. Louisiana Rule 3.7(a) 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.” La. Rules of Prof’l Conduct R. 3.7(a) (2004).

Given the language of the rule, a lawyer must first determine whether his testimony would render the lawyer a “necessary witness” at trial. Courts consider a lawyer’s testimony to be necessary when the “proposed testimony is relevant, material, and unobtainable elsewhere.” See, e.g., ABA Annotated Model Rules of Professional Conduct 384 (5th ed. 2003). Even when the lawyer is a “necessary witness,” the lawyer still may testify and serve as a trial advocate if (1) the lawyer’s testimony relates to an uncontested issue, (2) the lawyer’s testimony relates to the nature and value of legal services rendered in the case, or (3) the lawyer’s disqualification would work substantial hardship on the client. See La. Rules of Prof’l Conduct R. 3.7(a)(3) (2004). In Nicolas v. Nicolas, the Louisiana First Circuit affirmed a trial court’s finding that a lawyer should not be disqualified from testifying on his client’s behalf since the client had fallen ill on the day of hearing, and the lawyer’s disqualification would have caused substantial hardship to the plaintiff. See Nicolas, 923 So.2d. 690, 694-696 (La. Ct. App. 1st Cir. 2005). Courts consider several factors in determining whether a lawyer’s disqualification would cause substantial hardship, including the following: the amount of time and money the client has invested in the lawyer; the lawyer’s knowledge of the case; the forseeability of the need for the lawyer’s testimony; and, the consequences to the client. See ABA Annotated Model Rules of Professional Conduct 388-89 (5th ed. 2003).

Finally, even when Rule 3.7 disqualifies the lawyer from acting as a lawyer and trial witness, the rule does not prohibit the lawyer from actively representing the client in pretrial matters. See LSBA Public Op. 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); 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, 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”). 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)).