Ethics Spotlight: When a Lawyer Takes the Witness Stand

July 2023

By Scott B. Garner

The ever-evolving advocate witness rule in California makes it confusing for lawyers faced with the prospect of taking the witness stand for their client in a case where they also act as counsel. A lawyer can parse the rule currently in effect, compare it to the ABA Model Rule and the previous version of the California rule, and determine that he can ethically take the stand without withdrawing as counsel. And the lawyer may be right. The lawyer also must consider, however, whether it would be wise to do so.

ABA’s Lawyer as Witness Rule

ABA Model Rule 3.7 (“Lawyer as Witness”) provides that, with a few enumerated exceptions, “[a] lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness.” The exceptions include where (1) the testimony relates to an uncontested issue, (2) the testimony relates to the nature and value of legal services rendered in that case; and (3) disqualification would work a substantial hardship on the client. Comment [1] to Model Rule 3.7 states the rationale for the rule: “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.” It is noteworthy that the potential conflict of interest between the lawyer and client is listed last in Comment [1]—after prejudice to the tribunal and to the opposing party—which may explain why Model Rule 3.7 does not provide an exception when the client provides informed written consent.

California Allows Informed Consent

Unlike the Model Rule, California’s version of the advocate witness rule does provide an exception where the client gives informed written consent. That was true both in the former rule, Rule 5-210, which was applicable until October 31, 2018, and in the current rule, Rule 3.7. Even where the client gives consent, however, Comment [3] states, “[n]otwithstanding a client’s informed written consent, courts retain discretion to take action, up to and including disqualification of a lawyer who seeks to both testify and serve as an advocate, to protect the trier of fact from being misled or the opposing party from being prejudiced.” (citing Lyle v. Superior Court, 122 Cal. App. 3d 470 (1981)); see also Doe v. Yim, 55 Cal. App. 5th 573, 581 (2020) (“[T]he informed-consent exception is not absolute.”). 

Thus, California recognizes the potential prejudice to both the tribunal and the opposing party, just like the Model Rule does, but seems to put those concerns second and third behind the potential conflict of interest with the client. Thus, while a court may override the client’s informed written consent and disqualify a lawyer-witness, it generally will be the exception rather than the rule.

Other Aspects of CA’s Lawyer as Witness Rule 

One way California’s advocate-witness rule changed with the adoption of Rule 3.7 is that it no longer is limited to jury trials, but now applies to any “trial before a jury, judge, administrative law judge or arbitrator.” Rule 3.7, Cmt. [1]; compare former Rule 5-210 (“A member shall not act as an advocate before a jury which will hear testimony from the member. . . .”) (emphasis added). Even under Rule 5-210, however, at least one court still disqualified a lawyer from serving the dual role of advocate and witness in a family law bench trial (although, admittedly, the court relied on other grounds for disqualification in addition to the advocate-witness rule). Kennedy v. Eldridge, 201 Cal. App. 4th 1197, 1210 (2011) (“Most of the difficulties inherent in an attorney’s taking on the role of both advocate and witness are present regardless of whether the attorney’s testimony will be given in front of a jury or a judge.”).

Another aspect of the advocate-witness rule worth noting is that, according to the express language of Rule 3.7, it only applies to trials (even if not limited to jury trials). That said, courts have interpreted “trials” more broadly than just a trial itself. In Doe v. Yim, for example, the court interpreted trials in this context to include pre-trial evidentiary hearings. 55 Cal. App. 5th at 583. It also cited approvingly several non-California cases holding that the advocate-witness rule precluded an attorney from engaging in pretrial activities that risked revealing the attorney’s identity to the jury, including taking and defending depositions. Id.; see also Lopez v. Lopez, 81 Cal. App. 5th 412, 424 (2022) (citing Doe v. Yim). 

However broadly the rule is applied, it only applies to the lawyer who actually will be a witness, and any conflict based on the advocate-witness rule is not imputed to other members of the same law firm. See Rule 3.7(b). So, a lawyer who is likely to be a witness in a trial can still litigate aspects of the case, while relying on colleagues at the same firm (or co-counsel) to handle trial and possibly depositions. Although a lawyer generally is presumed to control tactics in litigation (see Rule 1.2), such a strategy probably should be discussed with the client upfront.

CA Courts Explain Rationale for Rule

Case law in California provides ample statements explaining the purpose of the advocate-witness rule. In People v. Donaldson, 93 Cal. App. 4th 916, 927-28 (2001), the court stated, “If a lawyer is both counsel and witness, he becomes more easily impeachable for interest and thus may be a less effective witness.” This policy rationale expresses concern for the conflict between the lawyer and the client, which most likely can be addressed by explaining the tradeoff to the client and obtaining the client’s informed written consent. But the Donaldson court also addresses the harm to opposing counsel: “[T]he opposing counsel may be handicapped in challenging the credibility of the lawyer when the lawyer also appears as an advocate in the case.” Id. Obviously, the client’s informed written consent cannot cure this perceived harm to opposing counsel. Donaldson also states, “[t]he roles of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the cause of another, while that of a witness is to state facts objectively.” Id. This language arguably addresses prejudice to the tribunal, although one also could argue it addresses potential harm to the client.

Other Considerations of Serving as Both Lawyer and Witness 

Based on the court’s language in Donaldson, although California’s informed written consent provision is not necessarily a “get out of jail free” card for a lawyer seeking to take on the dual role of advocate and witness, in many cases, it will be just that. The question, then, turns to whether the lawyer should serve as trial counsel in a case where he will or likely will be a trial witness. One consideration will be whether the lawyer as a witness is likely to be impeached on the stand (as most witnesses are in one way or another), which could have the effect of damaging the lawyer’s credibility as an advocate. Similarly, if the lawyer is an important witness, he should consider whether his role as an advocate will cause the jury to discount his testimony. The converse could also be true. That is if a lawyer is a likable advocate in front of the jury, that may translate to him being a more credible witness, thereby helping his client’s case. Similarly, if the lawyer as a witness presents a believable and compelling story while testifying, any goodwill from the trier of fact could bleed over into the lawyer’s overall advocacy in the case.

Conclusion

A lawyer should consider all of these potential scenarios, and more, before advising the client on the best strategy. And to the extent the lawyer is too close to the situation to be an impartial advisor on this issue, it would behoove him to involve another lawyer in the decision. Moreover, to the extent the lawyer concludes he can and should serve as both the trial lawyer and a trial witness, he will have to explain all of the potential scenarios— including, especially, all of the potential downsides—in order to make the client’s consent truly informed.

Scott B. Garner is a partner in the law firm of Umberg/Zipser LLP in Irvine, Calif. His practice is complex business litigation, with a particular focus on the representation of lawyers and law firms. He is a member of the CLA Ethics Committee, the co-chair of the Orange County Bar Associations’ Professionalism and Ethics Committee, and a former member and chair of the California State Bar’s Committee on Professional Responsibility and Conduct. He also is the former President of the Orange County Bar Association. The views expressed in this article are his own.