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Attorney as Witness
Q: I represented a client in a transaction some time back, which now
is the subject of litigation. The client has asked me to represent her in
the litigation, and I am inclined to accept the engagement. Will I be subject
to discipline if I represent her, given that I may be called upon as a witness
should the matter proceed to trial?
A: Rule 5-210 of the California Rules of Professional Conduct generally prohibits
you from acting "as an advocate before a jury which will hear testimony"
from you. The general exceptions to this restriction, which would otherwise
permit you to act as the advocate, are (a) where your testimony will relate
to an uncontested matter, (b) where your testimony will relate to the nature
and value of legal services rendered in the case, or (c) you secure the informed
written consent of the client. The restrictions of the rule are invoked whenever
a lawyer "knows or should know" that he or she ought to be called
as a witness in litigation in which there is a jury.
California's rule is substantially more lenient than its American Bar Association
model counterparts. Moreover, note that the rule specifically does not enjoin
testimony by an advocate at a bench trial, nor in a non-adversarial proceeding
(such as a legislative hearing). Even if the rule applies, it can be addressed
by allowing a member of your firm to perform the advocacy role, or by securing
the client's written consent to the arrangement.
This is not to say it's a good idea. The strategic benefit or risk is something
that should be considered, and discussed extensively with the client (and
reduced to writing and consented to if Rule 5-210 applies). Also, without
regard to compliance with disciplinary constraints, disqualification considerations
of the trial judge may not be as lenient if the opposing party should complain,
and query whether your client's best interests will be served if she is forced
to change counsel downstream.
This column is intended to be informal and nonauthoritative, and does
not represent the position of the San Diego County Bar Association. The discussion
does not apply to everyone, and you should retain legal counsel to assist
with your individual circumstances.
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