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Let's Be Blunt

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Let's Be Blunt Brett Kandt & Neil Rombardo “Ethics is that which is required and professionalism is that which is expected.” Evanoff v. Evanoff, 418 S.E.2d 62, 63 (Ga. 1992). The purpose of attorney discipline is to protect the public, the courts and the legal profession, not to punish the attorney. State Bar of Nev. v. Claiborne, 104 Nev. 115, 756 P.2d. 464 (1988). • Lawyer foresees being a necessary witness for client at onset • Lawyer becomes necessary witness in course of litigation • Opposing counsel seeks lawyer as a witness (usually discovery stage) • Lawyer serves as an expert witness in a case in which he/she is not representing a party Rule 3.7. Lawyer as Witness. (a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless: (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 in 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. Protects the fact-finder from confusion. “It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof.” ABA MODEL RULE OF PROFESSIONAL CONDUCT 3.7 cmt. 2. Protects the opposing party from any unfair prejudice accompanying the lawyer's dual roles. “A lawyer testifying as a witness may explain evidence rather than offering it, unfairly influencing the jury in the process.” Richmond, The Rude Question of Standing in Attorney Disqualification Disputes, 25 AM. J. TRIAL Advoc. 17, 52 (2001). Protects a lawyer-witness's client from conflicts of interest in the lawyer's dual roles. “If the lawyer (or a member of his firm) must give testimony that is adverse or ambivalent with respect to the client's cause, the cause may be damaged.” 2 Hazard & Hodes, THE LAW OF LAWYERING § 33.5, at 33-6 (3d ed. 2001). Rule applies to lawyers in their representational capacity; it does not bar their testimony as witnesses in other proceedings. Rule applies no matter which party the lawyer will testify on behalf of. Rule limited to "at a trial.“ Authorities generally agree that even a lawyer who knows he/she is likely to be a necessary witness at trial is not prohibited from handling that matter throughout investigation, discovery and settlement negotiations, with client consent. See, e.g., ABA Inf. Op. 89-1529 (1989); Pa. Ethics Op. 96- 15 (1996); D.C. Bar Ethics Op. 228 (1992). However, some courts have held pretrial disqualification appropriate where the activity "includes obtaining evidence which, if admitted at trial, would reveal the attorney's dual rule.“ World Youth Day, Inc. v. Famous Artists Merch. Exch., Inc., 866 F. Supp. 1297, 1303 (D. Colo. 1994). “Because the tribunal is not likely to be misled when a lawyer acts as advocate in a trial in which another lawyer in the lawyer's firm will testify as a necessary witness, paragraph (b) permits the lawyer to do so except in situations involving a conflict of interest.” ABA MODEL RULE OF PROFESSIONAL CONDUCT 3.7 cmt. 5. “If, however, the testifying lawyer would also be disqualified by Rule 1.7 or Rule 1.9 from representing the client in the matter, other lawyers in the firm will be precluded from representing the client by Rule 1.10 unless the client gives informed consent under the conditions stated in Rule 1.7.” ABA MODEL RULE OF PROFESSIONAL CONDUCT 3.7 cmt. 7. So - vicarious disqualification if the conflict rules alone would preclude the testifying lawyer from acting as both advocate and witness. [1] 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. [2] The tribunal has proper objection when the trier of fact may be confused or misled by a lawyer serving as both advocate and witness. 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 permitting the lawyers to testify avoids the need for a second trial with new counsel . Moreover, in such a situation the judge has firsthand knowledge of the matter. [4] . [P]aragraph (a)(3) recognizes that a balancing is required between the interests of the client and those of the tribunal and the opposing party. Whether the tribunal is likely to be misled or 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. Substantial hardship exception is narrowly construed - “In essence, Rule 3.7(a)(3) allows a lawyer-witness's representation of a client any time the detriment to the client, caused by the lawyer's disqualification, outweighs the prejudice to the opponent, caused by the lawyer's dual roles.” Richmond, Lawyers as Witnesses, 36 New Mexico Law Rev. 47, 54 (Winter 2006). “[C]ourts generally view motions to disqualify opposing counsel with extreme caution because disqualification can be used to gain a tactical advantage and to harass the opposing party. Thus, the showing of prejudice needed to disqualify opposing counsel is more stringent than when the attorney is testifying on behalf of his client because adverse parties may attempt to call opposing lawyers as witnesses simply to disqualify them. Sargent County Bank v. Wentworth, 500 N.W.2d 862, 871 (N.D. 1993). [6] In determining if it is permissible to act as advocate in a trial in which the lawyer will be a necessary witness, the lawyer must also consider that the dual role may give rise to a conflict of interest that will require compliance with Rules 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 the representation involves a conflict of interest that requires compliance with Rule 1.7. This would be true even though the lawyer might not be prohibited by paragraph (a) from simultaneously serving as advocate and witness because the lawyer's disqualification would work a substantial hardship on the client. Similarly, a lawyer who might be permitted to simultaneously serve as an advocate and a witness by paragraph (a)(3) might be precluded from doing so by Rule 1.9. 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. If there is a conflict of interest, the lawyer must secure the client's informed consent, confirmed in writing. Club Vista and Gary Tharaldson entered into a real estate development project known as Manhattan West with Scott Financial. When a multimillion dollar loan guaranteed by Tharaldson went into default, Club Vista hired attorneys Morrill and Aronson to determine whether legal action was warranted. Based on their investigation, Morrill and Aronson filed an action on behalf of Club Vista against Scott Financial, alleging that Scott Financial, as lenders on the loan, had failed to ensure that certain pre-funding conditions were satisfied before advancing money on the loan. The complaint included claims of, among other things, fraud, constructive fraud, and breach of fiduciary duty. In their NRCP 16.1 initial disclosures, Club Vista identified attorney Morrill as a person who “may have discoverable information related to dealings between Scott Financial and Tharaldson and related companies.” During discovery, Scott Financial deposed Tharaldson, who testified that, with a few exceptions, he did not have any personal knowledge of the factual allegations underlying the complaint, nor did he know of anyone, other than his attorneys, who might have such information. Scott Financial informed attorney Morrill that it intended to take his deposition as to the factual basis for the allegations in the complaint. Morrill filed a motion for a protective order to preclude Scott Financial from taking his deposition. The discovery master recommended that the district court enter an order denying the motion for a protective order and permitting Scott Financial to depose Morrill as to factual matters supporting the allegations in the complaint. The district court upheld the discovery master's recommendations, noting that the attorneys would be able to object to questions they believed impinged on a privilege, a record would be made such that the propriety of any specific question could be sufficiently addressed by the court, and the attorney-client and work-product privileges would not necessarily bar all questions that Scott Financial would ask.
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