ANNOTATIONSCOMMENT
[1]Combining the roles of advocate and witness can involve
a conflict of interest between the lawyer and client and can prejudice the
opposing party. If a lawyer is both counsel and witness, the lawyer
becomes more easily impeachable for interest and thus may be a less
effective witness. Conversely, the opposing counsel may be handicapped
in challenging the credibility of the lawyer when the lawyer also
appears as an advocate in the case. An advocate who becomes a witness
is in the unseemly and ineffective position of arguing his or her own
credibility.
[2]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]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 first hand 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 opposing party. Whether 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.
[5]Whether the combination of roles involves an improper
conflict of interest with respect to the client is determined by Rule
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 or member of
the lawyer's firm, the representation is improper. 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.
See Comment to Rule 1.7. If a lawyer who is a member of a firm may not
act as both advocate and witness by reason of conflict of interest Rule
1.10 disqualifies the firm also.
COMMITTEE COMMENT
The Committee disagreed with the approach taken in section (b) of
the Model Rules version of Rule 3.7 which stated that a lawyer could act
as an advocate, even if another lawyer in the advocate's firm was going
to testify, unless precluded by either Rule 1.7 or Rule 1.9. In such a
situation, a lawyer is not required to argue his or her own credibility
to the fact-finder. But there is still a potential conflict of interest
which can be serious in such situations. For example, it may be that
the firm relationship between the advocate-lawyer and the witness-lawyer
may make the witness seem less credible to the jury. The Committee felt
that (b) of 3.7 did not give sufficient emphasis to the conflicts of
interest that can arise in such situations. Thus the Committee changed
the emphasis in (b) considerably to state that a lawyer shall not act as
an advocate in such a situation unless the lawyer first complies with
the requirements of Rules 1.7 or 1.9.
ANNOTATION
Law reviews. For Formal Opinion No. 78 of the CBA Ethics Committee,
"Disqualification of the Advocate/Witness", see 23 Colo. Law. 2087 (1994).
Annotator's note.
Rule 3.7 is similar to
DR 5-101 and DR 5-102 as they
existed prior to the 1992 repeal and reenactment of the Code of
Professional Responsibility.
Relevant cases construing
those provisions have
been included in the annotations to Rule 1.7.
A party seeking disqualification of any attorney as "likely to be a
necessary witness" must show that "the advocate's testimony is necessary,
and not merely cumulative". Religious Technology Center v. F.A.C.T. Net,
Inc., 945 F. Supp. 1470 (D. Colo. 1996).
This rule does not mandate a hearing where there is a possibility of a
conflict of interest on the part of an attorney called as a witness against
his or her client. Taylor v. Grogan, 900 P.2d 60 (Colo. 1995).
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