August 11, 1997
A lawyer is not disqualified from representing a client as trial advocate merely because an adversary threatens to call the lawyer as a witness.
References: MRPC 3.7; RI-226
A lawyer who is defending a client in a civil matter has been advised by the adversary's counsel that the lawyer may be a "relevant witness" with regard to the making of a partnership agreement between the litigants. The adversary has testified in a deposition that a proposed partnership was discussed at a meeting between the client, the adversary and the lawyer. The lawyer recalls attending the meeting, recalls that it dealt with issues and events entirely unrelated to those underlying the present litigation, and is certain that no discussion about a partnership between the client and the adversary took place. The adversary's counsel has written the lawyer suggesting that the lawyer should withdraw as defense counsel "in accordance with MRPC 7.3." The lawyer believes that withdrawing from the representation (and thus requiring the client to retain new counsel) will result in substantial hardship to the client.
The lawyer asks whether this prospect -- i.e., that the lawyer will be called as a witness at trial to give testimony about a conversation which the lawyer is certain did not occur but which the lawyer's client adversary has testified did take place -- disqualifies the lawyer from conducting the trial as the lawyer's client defense counsel.
MRPC 3.7 states:
"(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:
"(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.
"(b) A lawyer may act as advocate in a trial which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9."
A lawyer is not obliged to withdraw from a contested matter merely because an adversary's counsel suggests that the lawyer "may be a relevant witness" as to some disputed issue. Rather, the lawyer must decide, in the first instance, whether the lawyer "is likely to be a necessary witness." In the present circumstances, the lawyer's own trial strategy surely would not call for the lawyer to testify about a conversation that the lawyer is certain did not occur. Rather, the adversary's counsel has raised the prospect of being called as a witness. It is doubtful that the adversary's counsel could reasonably conclude the lawyer's testimony is "necessary" if the adversary's counsel knows that the lawyer will deny having a conversation upon the existence of which the adversary's position depends. If the adversary's counsel persists in the view that the lawyer will be a trial witness even after learning that the lawyer's testimony on the key issue will be adverse to the adversary's position, the disqualification prospect would appear to be no more than a tactical ploy. The lawyer should consider taking the matter to the trial court, by way of a motion in limine or equivalent procedure, for a ruling; but the Committee does not believe that a lawyer must withdraw under MRPC 3.7 merely because an adversary's counsel threatens to call the lawyer as a trial witness.
The inquiry also suggests that the lawyer's disqualification might be avoided under an exception to MRPC 3.7 where disqualification will work a substantial hardship upon the client. MRPC 3.7(a)(3). The lawyer state that the litigation has been pending 18 months and that research and some discovery work have been done. The Committee is not in a position to opine on fact issues such as whether a lawyer's disqualification in a particular case would have effects that go beyond mere inconvenience and rise to the level of a substantial hardship to the client. No doubt the lawyer will see fit to bring that issue to the court's attention in the context of the disqualification issue and obtain a ruling prior to the commencement of trial.