Conflicts of Interest · 12-18% of the exam
9.3.2Rule 3.7: Advocate-witness conflict
Why
A factfinder asked to weigh a lawyer's testimony cannot easily separate the witness from the advocate arguing the same case. The dual role blurs whose credibility is being judged, and it hands the opposing party a disadvantage that has nothing to do with the merits.
Plain English
A lawyer likely to be a necessary witness can't serve as trial advocate in that case, subject to three exceptions: testimony on an uncontested issue, testimony on the nature and value of legal services rendered, or substantial hardship to the client from disqualification. The bar is personal; another firm lawyer may serve unless Rule 1.7 or Rule 1.9 independently applies. It reaches trial advocacy only.
Quick review — Rule 3.7 advocate-witness (taught fully in Chapter 15)
Four points on the advocate-witness bar, and the third one puts the firm back to work.
- A trial lawyer likely to be a necessary witness can't serve as the trial advocate in that case.
- Three exceptions: testimony on an uncontested issue; on the nature and value of legal services rendered; or substantial hardship to the client if disqualified.
- The conflict is personal and doesn't spread to the firm; another firm lawyer may serve as trial advocate unless an independent Rule 1.7 or Rule 1.9 conflict applies.
- Rule 3.7 governs trial advocacy only — depositions and other pretrial work don't trigger it. That is a limit on Rule 3.7 alone: Rules 3.3 and 3.5 do reach a deposition (Rule 3.3 cmt [1]; Rule 3.5 cmt [5]).
Example 1
Ex. 1
Rosa negotiated the contract now in suit and is likely to be a necessary witness about what was said at the signing, which the other side contests. She may not act as trial advocate in that case. She may still take the depositions and run the rest of the pretrial work, because Rule 3.7 governs trial advocacy only — while Rules 3.3 and 3.5 still reach her at a deposition. Her partner Saul may try the case: the bar is personal, it does not spread to the firm, and no independent Rule 1.7 or Rule 1.9 conflict appears here. Make the signing conversation uncontested and read the exceptions again — the bar on Rosa goes with it.
Questions · 1
Q 01ch09-e09
Question 1 of 1 · Rule 3.7
Attorney drafted and negotiated a distribution agreement for Client, a maker of greenhouse sensors. The buyer later sued Client, claiming that Attorney had promised at the signing meeting that the exclusive territory would run for ten years. Client denies that any such promise was made, and the point is disputed at trial. Apart from the parties themselves, Attorney is the only person who attended that meeting and can testify about what was said there. Three other lawyers at Attorney's firm know the file well and could try the case without hardship to Client. Attorney nonetheless appeared as trial counsel and also took the stand. Is Attorney subject to discipline?
Keys 1 to 4 choose.