Rule 3.7 Lawyer as Witness.
Rule Text
(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 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.
Plain-English Summary (for reference only — not a substitute for the rule text above)
This summary is not the rule. The rule text controls.
A lawyer generally cannot both testify as a witness and act as the trial lawyer in the same case. The concern is that jurors may get confused about whether the person is presenting evidence or arguing the case, and it can look unfair to the other side.
There are three situations where a lawyer can still act as the trial advocate even if they might need to testify. First, if the testimony is about something both sides already agree on, it's not a problem. Second, if the lawyer is only testifying about their own legal fees or the work they did on the case, that's allowed too. Third, if removing the lawyer from the case would cause serious harm to the client, such as if getting a new lawyer would be too costly or difficult, the original lawyer can stay on.
This rule only stops the specific lawyer who is likely to testify from also acting as the courtroom advocate. Other lawyers at the same law firm can still represent the client at trial, even if their colleague is going to be a witness. The only exception is if some other conflict of interest rule, like the ones covering current or former clients, would also block that arrangement.
Committee Notes
Comment (As Amended Effective June 23, 2008)
Combining the roles of advocate and witness can prejudice the opposing party and can involve a conflict of interest between the lawyer and client.
The tribunal has proper objection when the trier of fact may be confused or misled by a lawyer serving as both an advocate and a 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.
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.
Apart from these two exceptions, paragraph (a)(3) recognizes that a balancing is required between the interests of the client and those of the opposing party. Whether 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 principle of imputed disqualification stated in Rule 1.10 has no application to this aspect of the problem.
Whether the combination of roles involves an improper conflict of interest with respect to the client is determined by Rule 1.7 or Rule 1.9. For example, if there is likely to be substantial conflict between the testimony of the client and that of the lawyer or a member of the lawyer's firm, the representation is improper. 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. See Comment to Rule 1.7. If a lawyer who is a member of a firm may not act as both advocate and witness by reason of conflict of interest, Rule 1.10 disqualifies the firm also.
Comparison with Former Alabama Code of Professional Responsibility
DR 5-102(A) prohibited a lawyer, or the lawyer's firm, from serving as advocate if the lawyer “learned or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client.” DR 5-102(B) provided that a lawyer, and the lawyer's firm, may continue representation if the “lawyer learns or it is obvious that he or a lawyer in his firm may be called as a witness other than on behalf of his client... until it is apparent that his testimony is or may be prejudicial to his client.” DR 5-101(B) permitted a lawyer to testify while representing a client: “(1) If the testimony will relate solely to an uncontested matter; (2) If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony; (3) If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or his firm to the client; (4) As to any matter if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case.” The exception stated in paragraph (a)(1) consolidates provisions of DR 5101(B)(1) and (2). Testimony relating to a formality, referred to in DR 5-101(B)(2), in effect defined the phrase “uncontested issue,” and was redundant.
Note from the reporter of decisions: The order amending Rule 1.8, the Comment to Rule 1.8, Rule 1.10(a), the Comment to Rule 1.10, Rule 1.12, Rule 1.14, the Comment to Rule 1.14, the Comment to Rule 3.2, Rule 3.6, the Comment to Rule 3.7, Rule 3.9, and Rule 4.4 is published in that volume of Alabama Reporter that contains Alabama cases from 983 So.2d.