The Advocate-Witness Rule

Lawyer as Witness

The Advocate-Witness Rule

A lawyer who is likely to be a necessary witness at a trial ordinarily may not also try it. Model Rule 3.7(a) says so directly: a lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness, unless an exception applies.¹ Two facts must both be true before the rule bites. The lawyer would be acting as advocate at a trial, and the lawyer is likely to be a necessary witness in it. When both are true and no exception fits, the lawyer must give up the advocate's role.

Law dictionaries file the doctrine under three names, the advocate-witness rule, the lawyer-witness rule, and the attorney-witness rule, and an exam may use any of them. They define it as a bar on an attorney who will likely be called as a fact witness from participating as an advocate in the case.² Three exceptions soften the bar. The testimony may relate to an uncontested issue, it may relate to the nature and value of legal services rendered in the case, or disqualifying the lawyer may work substantial hardship on the client.³ Later sections take each exception in turn. Every problem on this topic starts from the prohibition and then asks whether an exception rescues the lawyer.

The prohibition falls on the lawyer's role as advocate, not on the lawyer's competence to testify. The rule does not render an advocate incompetent as a witness; it merely vests the trial court with discretion, a power the section on enforcement develops.⁴

Courts call the two roles inconsistent, even irreconcilable. An advocate's function is to advance or argue another person's cause, while a witness's function is to state facts objectively.⁵ The recognized rationales spell out what goes wrong. The lawyer may not be a fully objective witness, the trier of fact may confuse the roles and give an advocate's arguments the weight of testimony, and the administration of justice should appear fair as well as be fair.⁶

A lawyer who is both counsel and witness is easier to impeach for interest and so may be a less effective witness for the client. Opposing counsel may be handicapped in challenging the credibility of someone who is also arguing the case against them. The advocate who testifies ends up in the unseemly and ineffective position of arguing his own credibility.⁷

The factfinder faces a different problem, because it cannot always tell what it is hearing. A witness reports facts and an advocate argues. When one person speaks in both voices, the trier of fact may confuse the roles and erroneously give the advocate's arguments testimonial weight.⁸ A jury that treats a closing argument as if it had been sworn has credited an assertion that no one cross-examined.

The third concern is appearance. As one California court put it, the pairing puts counsel in the position of being partisan and factual at once, and so robs the trial of the appearance of fairness that should characterize every court hearing. The concern does not depend on who decides the facts, since most of these difficulties arise whether the testimony goes to a jury or to a judge.⁹

Kennedy v. Eldridge shows the confusion arising in a live proceeding. In a custody matter, attorney Richard Eldridge told the court at an earlier hearing that he does not smoke pot and hates cigarette smoke so much that he asks anyone smoking to leave the house. Judge Mize then asked whether Eldridge was arguing as an attorney, testifying as a witness, making an offer of proof for his client, or speaking for himself as a witness. The judge called the conflict untenable and noted that it already had been manifested in a preliminary law and motion matter, well before the more serious problem a full custody trial would present.¹⁰

Okafor's knowledge is identical in both versions of the story, and only the combination of testifying and arguing changes. Rule 3.7(b) addresses the second arrangement in a separate provision. It generally does not extend one lawyer's bar to colleagues in the same firm, although other conflict rules may still limit the partner, as later sections show.¹¹ The common error is to read the rule as a ban on the lawyer's testimony or on the firm's participation in the case. The prohibition in Rule 3.7(a) reaches only the lawyer who would both act as trial advocate and be a likely necessary witness.

A lawyer's connection to the facts can also raise questions that look similar but are not Rule 3.7 questions. Hickman v. Taylor is a discovery dispute. Lawyer Fortenbaugh interviewed witnesses to the sinking of the tugboat J.M. Taylor for its owners, and when the survivors' suit followed, the plaintiffs sought to discover his notes of those interviews.¹² Rule 4.2 is a communications rule. It prohibits a lawyer from communicating about the subject matter of the representation with anyone the lawyer knows to be represented by counsel in the matter, absent the consent of that person's lawyer.¹³ Neither doctrine decides who may try the case. Rule 3.7 does.