Attorney Witness Rule Overview
As a recognized legal maxim, the "Attorney Witness Rule" is an ethical rule governing lawyers. The Northern District of Ohio has a General Order confirming that the Ohio Rules of Professional Conduct govern attorneys practicing before the court. In practice, the Attorney Witness Rule is frequently stated as Disciplinary Rule 5-102(B): "If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is subsequently obvious that he or a lawyer in his firm may be a witness on behalf of his client, he shall withdraw from the conduct of the trial of the case, except that if, in the opinion of the tribunal, his disqualification will work substantial hardship on the client, the tribunal may, in its discretion, waive the necessity for his withdrawal."
Although there are no Sixth Circuit opinions explicitly arguing that the Attorney Witness Rule applies to federal courts, it is worth noting that the U.S. District Court for the Northern District of Illinois applied the rule to federal court practice. What is more, federal law does not provide for the same kind of attorney mobility that state law does . Therefore, because of the importance of the Attorney Witness Rule and the references in local court rulings — even in federal court — I suggest that local practices should be closely followed in federal court. The point of the Attorney Witness Rule is that discovery should not be complete by the time that the lawyer gets to trial. A normally honest lawyer asking a leading question to his or her own witness at trial is subject to impeachment or exclusion by a motion in limine. Thus, for example, if a lawyer for party A calls an essential witness for party B to testify about a particularly sensitive issue, such as the opioid crisis, then the courtroom will be filled with a "see, I told you" head shaking audience. In short, that kind of evidence is clean, neat, and orderly; but it is also not justice and it is not what the parties’ expect. It is what some would call "showboating" or "railroading." This is what the Attorney Witness Rule aims to avoid, as should a lawyer’s testimony later be needed, allowing the lawyer to testify while they are the primary representative for their party could be needlessly harmful to the client.
What the Attorney Witness Rule Aims to Accomplish
The primary aim of the attorney witness rule is to avoid any potential conflicts of interest that may occur in the course of representation. This is particularly important when an attorney is an advocate and an essential witness for their client. The potential for a conflict of interest arises because, as a witness, the attorney may be compelled to reveal confidential or privileged information that they have regarding their client. This could put them in a position where they have to choose between maintaining their duty of loyalty and confidentiality to their client or fulfilling their obligations as a witness.
Another reason that this rule exists is to maintain the integrity of the legal process. Attorneys who serve as witnesses and advocates can blur the lines between their roles, which can lead to confusion and can diminish the effectiveness of the legal process. It may be difficult to determine the impartiality of an attorney-witness who has also represented the same client.
In addition to avoiding conflicts of interest, the attorney witness rule gets at the issue of reliability. Attorneys are not hired for their fact-finding abilities, but for their scholarship of the law. There is a premise in the American justice system that the most effective people to testify in front of a judge or jury on any particular issue are those that are completely neutral and do not have a personal or financial stake in the outcome. Attorneys are trained in negotiation, advocacy, thinking on their feet, and making their side’s case. As such, jury members may be less likely to view an attorney witness’s testimony as relevant as that of a neutral witness with no stake in the outcome because they only see from the attorney’s perspective and many assume they will say what they’re told to say.
When the Attorney Witness Rule Does Not Apply
As with most rules in the law, there are bound to be exceptions, and the attorney witness rule is no different. First and foremost, an attorney may ethically act as an advocate even if he or she is a witness for a client as long as he or she will only testify as a witness on an uncontested matter. An example of an uncontested matter is an uncontested divorce where no child related issues will be addressed and there are no issues relating to property ownership, alimony, or child support. Another example would be resolving an estate where the parties simply want to agree on the distribution of the deceased’s property.
Another common exception involves the need for one of the parties/involved witnesses to testify in a location where there will be insufficient time to obtain another attorney, i.e., in court without notice and before an attorney can be retained or in some other area of the state or country with limited legal resources. For example, in some instances an attorney may represent a party involved in an automobile accident that occurs in a remote area. The police arrive on the scene and one of the drivers is injured and insists on receiving medical treatment in that location. With limited facilities in the area, the driver will not be treated as quickly as needed. The attorney may have to serve as a witness to the accident in order to assist the client in obtaining timely medical treatment.
Other times, an attorney may need to testify as a witness to fully resolve the matter at hand. For example, in a malpractice case involving an attorney and the client, the attorney may need to testify. It would be unethical to argue on behalf of the opposing counsel involved in the matter without fully disclosing the facts of the underlying litigation with the client. Because the attorney must testify, it would be necessary for the attorney to withdraw as counsel from the case against him or her. In this situation, the necessity of testifying outweighs the likelihood of the attorney prevailing in the case against him or her. These are just a few of the more common exceptions, but there are always exceptions and the circumstances are never identical from case to case.
Consequences of the Attorney Witness Rule Violation
A violation of the attorney witness rule may lead to disciplinary proceedings before state bar authorities. An attorney practicing before the United States Patent and Trademark Office (USPTO) is subject to disciplinary rules of the USPTO Office of Enrollment & Discipline (OED). There is no specific disciplinary provision with regard to the attorney witness rule. However, misconduct of an attorney before the USPTO can lead to discipline and hearings before the OED. (37 C.F.R. § 11.1; §11.19(b)).
Allowing oneself to be called as a witness in a case that one is handling creates a conflict of interest as it places the lawyer in a position of having to choose between the interests of his or her client and the needs of the litigation. In addition to a conflict issue, serving as a material witness may also be perceived as bringing disrepute to the legal profession. The lawyer has an obligation to promote respect for the legal profession. (ABA Model Rule 8.4) Undoubtedly this would also implicate the confidentiality and impropriety issues as the witness may have prior knowledge as an attorney that the opposing party does not. All of these factors could also result in the attorney violating the rules of civility.
A violation of the attorney witness rule can also impact the legal practice of a patent attorney. A patent application is available to the public after 18 months from its earliest priority date. An application cannot be withdrawn from prosecution without connecting prior art and analysis derived from the application. Thus, a third party can become aware of the existence of a pending patent application which may trigger a competitive business response including a challenge to the patent (e.g., reexamination, patent opposition, etc.). Participation as a witness in a proceeding involving an application could amount to material and detrimental disclosure of confidential information thereby resulting in a conflict of interest. There is also a possibility that the witness information could be used inappropriately against the party (see 37 C.F.R. § 10.64) and conflict with the confidentiality rules of the USPTO.
Attorney Witness Rule Case Studies and Examples
The attorney witness rule has been a topic of litigation, and its application has been further clarified in appellate case law.
In Goldyne v. La Salle National Bank, 54 Ill. App. 3d 943, 370 N.E.2d 1132 (1977), the court concluded that an attorney may testify in a matter in which the attorney is also involved as an advocate. In Goldyne , the Illinois Court of Appeals approved the dual role for attorneys for litigants and witnesses to the extent they testified about facts and events that were known to them as litigants and the corresponding witnesses when there is no objection from opposing parties. However, in Duffus v. City of Chicago, 184 Ill. App. 3d 344, 539 N.E.2d 1306 (1989), the court affirmed a contempt order when an attorney representing the wife in a divorce proceeding violated the three-year rule by representing the wife’s sister in that proceeding, which was also pending against the same husband.
Attorney Witness Rule Tips for Practicing Lawyers
When confronted in anticipation of having to testify in a matter they are working on as an advocate, attorneys should weigh several factors. The attorney may be forced to limit his or her role in that matter or refer the case out completely to avoid any perception of conflict or unethical dilemma. Attorneys who find themselves in this position should attempt to postpone the proceedings until they can refer or obtain substitute counsel. It may also be appropriate in some cases to file an appropriate action with the Court to formally excuse the attorney from having to testify. This especially applies to attorneys who would otherwise be disqualified from representing their clients if they are called to testify as a witness about a material issue in their case as an advocate. Attorneys may also want to take steps to prevent a party having to do this by inserting appropriate language in any engagement letter or retainer agreement which contracts away the need for the attorney to testify, such as a waiver or other strategy to obtain a waiver in the event a testifying attorney tries to quit a matter for which he is responsible. Reasonable measures may be taken to resolve the conflict; however, the testifying attorney must be aware that the presiding judge has discretion on whether disqualification is proper, even if the attorney attempts to voluntarily remove themselves as advocate.
Attorney Witness Rule and The Future
As legal practices continue to develop and ethical standards evolve, questions are likely to arise over how the attorney witness rule will address new legal realities in the years to come. Likely scenarios include:
- Expanded responsibilities to police the opposing party’s compliance with the attorney witness rule, as in Huie, by all lawyers in a case, including those who are not trial counsel;
- Expanded definitions of litigation partners or co-counsel to include lawyers who are not actively practicing or otherwise intimately involved in the current litigation, particularly those with supervisory responsibility such as insurance-related lawyers;
- Black-letter rules precluding the testimony of all legally disqualified lawyers in any action in which a legally disqualified lawyer is a fact witness, even on unrelated matters;
- Limiting the term "matter" in cases involving lawyers with prior and current representations of the clients, preserving the disqualification only when the same parties are directly involved in the matter where the 3 . 07 violation arose;
- Disqualifying all non-testifying counsel with any involvement in the trial preparation of a fact witness, perhaps even when the non-testifying counsel has no individually cognizable knowledge of the matter being tried.