Pennsylvania Code › Title 204 - JUDICIAL SYSTEM GENERAL PROVISIONS › Part V - PROFESSIONAL ETHICS AND CONDUCT › Subpart A - PROFESSIONAL RESPONSIBILITY › Chapter 81 - RULES OF PROFESSIONAL CONDUCT › Subchapter A - RULES OF PROFESSIONAL CONDUCT › ADVOCATE › Rule 3.7 - Lawyer as Witness

Current through Register Vol. 54, No. 28, July 13, 2024
(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.
Comment:
(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.
Advocate-Witness Rule
(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) To protect the tribunal, paragraph (a)
						prohibits a lawyer from simultaneously serving as advocate and necessary
						witness except in those circumstances specified in paragraphs (a)(1) through
						(a)(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 firsthand
						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 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. It is relevant
						that one or both parties could reasonably foresee that the lawyer would
						probably be a witness. The conflict of interest principles stated in Rules
						1.7,
						1.9 and
						1.10 no application to this
						aspect of the problem.
(5) 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.
Conflict of Interest
(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. In some cases,
						the lawyer will be precluded from seeking the client's consent. See Rule 1.7.
						See Rule 1.0(b) for the
						definition of "confirmed in writing" and Rule
						1.0(e) for the
						definition of "informed consent."
(7) Paragraph (b) provides that a lawyer is
						not disqualified from serving as an advocate because a lawyer with whom the
						lawyer is associated in a firm is precluded from doing so by paragraph (a). 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.