Vol. 26, No. 8
Formal Opinion No. 78: Disqualification of the Advocate/Witness
INTRODUCTION AND SCOPE
The purpose of this opinion is to provide guidance in situations where an advocate may also be called as a witness.1 Also discussed are the ethical limitations and considerations of subpoenaing, listing or identifying another party’s attorney as a witness or potential witness.
Although the applicable Colorado Rules of Professional Conduct (herein "Colorado Rules" or "Colo. RPC") are frequently, if not predominantly, used as the basis of a motion to disqualify another party’s counsel, rather than as a basis for attorney discipline, this Opinion does not purport to be a legal opinion as to the circumstances under which a motion to disqualify should be filed, granted or denied.
Subject to certain enumerated limited exceptions, an attorney may neither accept nor continue employment as an advocate if the lawyer is likely to be a necessary witness in the case, or if another lawyer in the firm is likely to be called as a witness unless the requirements of Colo. RPC 1.7 and 1.9, regarding general conflicts of interest, have been met.
An advocate is not per se ethically disqualified from representing a client in litigation arising from a business matter or other transaction in which the advocate, or another lawyer in the advocate’s firm, previously acted as counsel, or in litigation involving facts developed by the advocate’s investigation. However, counsel must be cognizant of the possible basis for disqualification inherent in such situations and should decline employment or withdraw from representation if the standards discussed herein are violated.
In the zealous representation of a client’s cause, a lawyer may be required to obtain discovery from, or call as a witness at trial, an attorney in a law firm representing another party. Again, there is no ethical standard that automatically prohibits a lawyer from taking such action. However, subpoenaing, identifying or calling an opponent party’s attorney, or a non-advocate attorney in an opponent party’s law firm, must not be done routinely or lightly. Doing so (whether or not combined with a motion to disqualify) solely as a contrivance to disqualify opposing counsel may constitute a violation of the Colorado Rules.
There is no per se ethical prohibition against an attorney being a witness on behalf of a client. Rather, the Colorado Rules limit only the ability of an attorney to serve as an advocate at trial if that attorney "is likely to be a necessary witness," or in a matter in which another attorney in the firm is "likely to be called as a witness." (Emphasis added.)
Construing the predecessor Colorado Code of Professional Responsibility ("Code"), the Colorado Supreme Court has observed:
A lawyer who intermingles the functions of advocate and witness diminishes his effectiveness in both roles. . . . [T]he lawyer is placed in the unseemly position of arguing his own credibility to the jury. . . . Obviously a lawyer’s duty to exercise independent judgment on behalf of his client will be even more seriously jeopardized when the lawyer is called as a witness to give testimony adverse to his client.
Williams v. The District Court for the County of El Paso, Colorado, 700 P.2d 549, 553 (Colo. 1985) [hereinafter, Williams]. Similar considerations are reflected in Colo. RPC 3.7, comment .2
A. -Colo. RPC 3.7 and ABA Model
Rule 3.7 Contrasted
Courts have long recognized the prejudice created by disqualification of an advocate, and the potential for abuse if an attorney may be disqualified simply by being listed or subpoenaed by an opposing party. Colo. RPC 3.7 follows the trend of the ABA’s Model Rules of Professional Conduct ("Model Rules") in relaxing the prohibitions contained in the prior Code, with two important differences.
First, Colo. RPC 3.7(b) reverses a key presumption, and apparently the burden of proof, of Model Rule 3.7(b). Model Rule 3.7(b) provides:
A lawyer may act as an advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as a witness unless the requirements of Rule 1.7 or 1.9 have been met. (Emphasis added).
Colo. RPC 3.7(b), on the other hand, provides:
A lawyer shall not act as an advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as a witness unless the requirements of Rule 1.7 or 1.9 have been met. (Emphasis added.)
The Colorado Committee Comments to Colo. RPC 3.7(b) reinforce the deliberate attempt to "change [ ] the emphasis in (b) considerably. . . ."
Second, in analyzing whether an advocate is barred from simultaneously acting as a witness under the general conflict of interest rule expressed in Rule 1.7, the Colorado Rules elevate a comment to the Model Rules to the status of a rule:
For the purpose of this Rule, a client’s consent cannot be validly obtained in those instances in which a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances of the particular situation.
Colo. RPC 1.7(c). In analyzing advocate/witness problems, it is important for Colorado attorneys to be mindful of these two subtle, significant differences between the Colorado Rules and the Model Rules.
ANALYSIS OF ADVOCATE/WITNESS ISSUES UNDER THE COLORADO RULES OF
The following Colorado Rules may bear on the propriety of a lawyer simultaneously acting as trial advocate and witness, or of another lawyer in the testifying lawyer’s firm acting as a trial advocate:
A. Analysis of Colo. RPC 3.7
Colo. RPC 3.7 addresses the advocate/witness situation directly. It is divided into two subsections: the first enumerating the exceptions to the general rule that a witness may not be a trial advocate, the second governing when another non-testifying lawyer in a testifying lawyer’s firm may serve as trial advocate.
1. Colo. RPC 3.7(a): A General Exclusionary Rule
Like its predecessor provisions of the Code, DR 5-101(B) and DR 5-102(A), Colo. RPC 3.7 is drafted with a presumption that an advocate may not simultaneously act as a witness:
A lawyer shall not act as an advocate in a trial in which the lawyer is likely to be a necessary witness except. . . . (Emphasis added.)
2. Prohibition Limited to Advocacy at Trial
Despite the breadth of its general prohibition, Colo. RPC 3.7 applies only to an attorney "act[ing] as an advocate at trial." Thus, with the informed consent of the client, a lawyer who is likely to be a necessary witness may accept employment and continue to represent the client in all litigation roles short of trial advocacy. See, e.g., Culebras Enterprises Corp. v. Rivera-Rios, 846 F.2d 94 (1st Cir. 1988) (lawyers performing substantial pretrial work did not violate Rule 3.7 because they did not plan to act as advocates at trial); United States v. Castellano, 610 F.Supp. 1151, 1167 (S.D.N.Y. 1985) (lawyer may fully participate in pretrial stage even though the lawyer will probably be called as a witness). See generally, ABA Comm. on Ethics and Professional Responsibility, Informal Opinion 89-1529 (1989) (lawyer who is expected to testify at trial may represent client in pretrial proceedings, provided client consents after consultation and lawyer reasonably believes representation will not be adversely affected by the client’s interest in the expected testimony).
Similarly, by its terms, Colo. RPC 3.7 is not applicable to service as appellate counsel, at least where the attorneys’ trial testimony is not material on appeal. See, e.g., ABA Comm. on Ethics and Professional Responsibility, Informal Opinion 1446 (1980) (under prior Code an attorney/witness may participate in appeal if the attorney’s testimony is not material to issues on appeal); accord N.Y. City Bar Ass’n, Comm. on Professional and Judicial Ethics, Op. 1988-9 (undated).
While Model Rule 3.7 has been construed to limit only "act[ing] as an advocate at trial," the attorney’s analysis must not be myopic. For example, many of the policies advanced in support of Rule 3.7 are equally applicable to administrative adjudicative proceedings. Further, several other Colorado Rules may bear on the propriety of the representations, e.g., Colo. RPC 1.7, 1.9 and 3.3. See infra. The limited prohibition of Rule 3.7 should neither be viewed as an open invitation to always serve as "pretrial" counsel, nor to withdraw at the first suggestion that the lawyer may be called as a witness, without careful analysis of all potential ethical complications. The advocate faced with the prospect of being a witness is always well advised to consult fully with the client early in the case regarding both the potential complications arising from being a witness and the potential advantages and disadvantages of serving as "pretrial" counsel. Such consultation should include a discussion of the possibility that it may be prudent to retain a second "shadow" trial attorney early in the case in the event the first attorney is ethically precluded from acting as trial advocate.
3. Necessity of Lawyer’s Testimony
Before an advocate will be disqualified under Colo. RPC 3.7, it must be "likely" that the lawyer will be a "necessary" witness. Compare DR 5-101(B) (attorney must decline employment if the attorney "ought to be called" as a witness). The "necessary" witness standard is recognized as requiring "an even more specific showing of necessity" than the Code. Security Ge. Life Ins. Co. v. Superior Court, 149 Ariz. 332, 718 P.2d 985 (1986) (Rule 3.7(a) requires a showing that the proposed testimony is relevant, material, and unobtainable elsewhere). It has been held that the advocate’s testimony must be necessary, and not merely cumulative, and that the court may delay ruling on a motion to disqualify until it can determine whether another witness can testify. Thus, Rule 3.7(a) is "less prone to exploitation by opposing parties and more compatible with each party’s interest in retaining its counsel of choice." Cannon Airways, Inc. v. Franklin Holdings Corp., 669 F.Supp. 96, 100 (D. Del. 1987).
The term "necessary witness" cannot be interpreted strictly by reference to evidentiary decisions analyzing when testimony is "necessary." The naming of a party’s attorney does not ipso facto render the named attorney a "necessary witness" under Colo. RPC 3.7. Nor does the availability of other competent witnesses for the same testimony automatically render a named attorney "unnecessary." The Committee believes that the determination of whether a party’s attorney is a "necessary witness" normally will be made on an ad hoc basis by the trial court.
4. Enumerated Exceptions
Colo. RPC 3.7(a) identifies three instances in which a lawyer who is likely to be called as a necessary witness may also act as an advocate:
(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.
The first exception combines two exceptions enumerated in the prior Code, DR 5-101(B)(1) & (2). Courts long recognized under the Code that there was no practical distinction between these two exceptions. See, e.g., Nekasian v. Incontrade, Inc., 78 F.R.D. 229, 232 (S.D.N.Y. 1978). Colo. RPC 3.7(a)(1) simply recognizes that where the advocate’s testimony relates to an uncontested issue, the policy considerations favoring the general exclusionary rule are inapplicable. Moreover, the parties should be able to stipulate to uncontested matters, thus avoiding entirely the need for the advocate to testify.
Colo. RPC 3.7(a)(2) alleviates the hardship inherent in requiring legal counsel to present testimony relating to the nature and value of the advocate’s legal services, notwithstanding that such testimony is potentially embarrassing and thereby may diminish the effectiveness of the attorney as an advocate.
Colo. RPC 3.7(a)(3) continues and liberalizes the "substantial hardship" provision of DR 5-101(B)(4), by deleting the Code’s requirement that the hardship must result "because of the distinctive value of the lawyer or the law firm as counsel in the particular case," id. The Comments to Colo. RPC 3.7 recognize that "a balancing is required between the interests of the clients and those of the opposing party." Colo. RPC 3.7, comment . Thus, the financial burden on the client of replacing the attorney, if combined with other circumstances, may be sufficient to create an exception. See generally, Wolfram § 7.5.2, at 386-88.
5. Vicarious Disqualification
Colo. RPC 3.7(b) attempts to strike a balance between the absolute disqualification rule imposed by former DR 5-105(D) and the more liberal Model Rule 3.7(b).
Under the former Code, a non-testifying advocate was vicariously disqualified if a testifying member of the firm would be prohibited from simultaneously serving as an advocate at trial. Model Rule 3.7(b) expressly abolishes the automatic disqualification created under the Code, providing that:
A lawyer may act as an advocate at 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. (Emphasis added.)
As noted above, Colo. RPC 3.7(b) reverses the syntax and presumption of Model Rule 3.7(b), but does not revert to the Code’s per se vicarious bar. However, under Colo. RPC 3.7(b), an associate or partner of a testifying lawyer may not act as an advocate in a trial "unless the requirements of Rule 1.7 or 1.9 have been met."
However, liberalization of vicarious disqualification in the advocate/witness context does not mean that the potential advocate/witness can ignore the possibility of general vicarious disqualification under Colo. RPC 1.10 arising for other reasons.3 "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." Colo. RPC 3.7, comment . Note too that, while a disqualification prescribed by Rule 1.10 may be waived by the affected client under Colo. RPC 1.10(c), this requires compliance with Colo. RPC 1.7, and its express limitation that a "disinterested lawyer" would not find the waiver improper (designed by the Colorado Rules Committee to emphasize that the standard is an objective test). Colo. RPC 1.7(c).
B. -Other Considerations Under
The Colorado Rules
If the lawyer concludes that Rule 3.7 will not be violated by his testimony or the testimony of another lawyer in the lawyer’s firm, the general conflict of interest rule, Colo. RPC 1.7, and the conflict of interest rule relating to representation against the interest of a former client, Rule 1.9, must also be considered.4 While Colo. RPC 3.7 expressly references these Rules only in subsection (b), concerning the propriety of an attorney acting as an advocate in instances where another lawyer in the firm is likely to be called as a witness, the Comments to Colo. RPC 3.7 are clear that the general conflict of interest rules also pertain to Rule 3.7(a):
[I]f there is likely to be substantial conflict between the testimony of the client and that of the lawyer or 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.
Colo. RPC 3.7, comment . As noted above, in analyzing the general conflict of interest rule under Colo. RPC 1.7, the lawyer must be mindful that "a client’s consent cannot be validly obtained in those instances in which a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances of the particular situation." Colo. RPC 1.7(c).5
PROPRIETY OF IDENTIFYING OR
LISTING ANOTHER PARTY’S
ATTORNEY AS A WITNESS OR
MOVING FOR DISQUALIFICATION
A lawyer is not prohibited from calling another party’s attorney or another member of the party’s attorney’s firm as a witness, either in discovery or at trial, where such attorney may have unprivileged knowledge relevant to the case or unprivileged knowledge reasonably calculated to lead to the discovery of admissible evidence.
Frequently the identifying or subpoenaing of an attorney as a witness is accompanied by a motion to disqualify that attorney and the attorney’s firm from further participation in the lawsuit. Indeed, the Colorado Supreme Court has held that the act of subpoenaing opposing counsel as a trial witness under certain prescribed circumstances, is deemed the "functional equivalent" of a motion to disqualify. Williams, 700 P.2d at 555 (Colo. 1985). This admonition, however, must not be read literally. The mere subpoenaing or listing of opposing counsel as a witness does not require that the trial court sua sponte conduct a hearing to determine whether the subpoenaed or named counsel must be disqualified. Whether or not to file a motion to disqualify is the decision of the attorney subpoenaing or listing opposing counsel as a witness. However, regardless of whether a motion to disqualify is filed, the subpoenaed or named attorney has a duty to promptly determine whether or not withdrawal is required under the Colorado Rules, and to act appropriately. Taylor v. Grogan, 900 P.2d 60 (Colo. 1995), reversing Grogan v. Taylor, 877 P.2d 1374 (Colo. App. 1993).
The proliferation of motions to disqualify has led courts to view them with suspicion. See, e.g., Greenbaum-Mountain Mort. Co. v. Pioneer Nat’l Title Ins. Co., 421 F.Supp. 1348, 1354 (D. Colo. 1976) ("We also recognize that counsel can approach the Code and Canon 5 as another arrow in his quiver of trial tactics."). See also J.P. Foley & Co. v. Vanderbilt, 523 F.2d 1357 (2d Cir. 1975).
Before filing a motion to disqualify, the moving attorney should first make a good faith effort, both through investigation and available discovery, to ascertain the validity of the facts that give rise to the motion. Timeliness in subpoenaing, identifying or listing an opposing counsel or another member of opposing counsel’s firm is an important factor in determining whether counsel is genuinely seeking relevant, significant testimony or is merely seeking to disqualify an adversary. What counsel learned or should have learned in the development of the case is important in determining timeliness.
A motion to disqualify not well supported in law or fact exposes the attorney filing the motion and the attorney’s client to various sanctions, apart from the denial of the motion. These may include an award of attorney’s fees incurred in connection with opposing the motion against the moving attorney, the client or both. See Colo. R. Civ. P. 11 and Fed. R. Civ. P. 11; Colo. Rev. Stat. § 13-17-101 et seq.; Colo. R. Civ. P. 121, Sec. 1-15(7) and 28 U.S.C. § 1927. See, e.g., Wold v. Minerals Engineering Co., 575 F.Supp. 166 (D. Colo. 1985) (imposing Rule 11 sanctions against law firm filing motion to disqualify). Such conduct can also violate the Colorado Rules. Colo. RPC 3.1 (Meritorious Claims and Contentions).
The use of the subpoena power solely as a contrivance to disqualify opposing counsel may also constitute unprofessional conduct prejudicial to the administration of justice in violation of Colo. RPC 8.4(d). Williams, 700 P.2d at 554 (construing the prior Code).6 The assertion of a position merely to harass or maliciously injure another, and knowingly advancing a claim unwarranted under existing law, further violates Colo. RPC 3.1. Although, in practice, meritless motions to disqualify are summarily resolved by denial of the motion, with or without an award of sanctions, see generally, Wolfram § 7.5.1 at 375, a frivolous motion constitutes independent grounds for attorney discipline. See Colo. Civ. R. P. 241.6(1) and (2).
1. This opinion does not address and is not intended to be controlling in situations in which an attorney acts as both an advocate and a guardian ad litem in the same matter. Such cases involve special considerations. See, e.g., People in the Interest of J.E.B., J.O.B. and C.B., Children, and Concerning S.B., 854 P.2d 1372, 1375 (Colo.App. 1993); Short v. Short, 730 F.Supp. 1037 (D.C. Colo. 1990). See also Walton and Schmalberger, "Final Draft of Proposed GAL Standards," 22 The Colorado Lawyer 1907 (Sept. 1992).
2. Historic rationales for the advocate/witness rule are numerous, often contradictory and have begot no shortage of critical comment. See generally Wolfram, Modern Legal Ethics § 7.5.2, at 337-79 (1986) [hereinafter, Wolfram]; Hazard & Hodes, 1 The Law of Lawyering, § 3.7:102, at 678-79 (Supp. 1992).
3. Unlike former DR 5-105(D), Colo. RPC 1.10 is not an omnibus rule of vicarious disqualification. An attorney is vicariously disqualified only if another lawyer associated in the firm would be prohibited from undertaking or continuing the representation under Rule 1.7, 1.8(c), 1.9 or 2.2 Colo. RPC 1.10(a). Conspicuously absent from Colo. RPC 1.10 is any mention of Rule 3.7, reemphasizing that the rule of disqualification imposed by 3.7(a) is intended only as a personal bar. If an advocate is likely to be called as a necessary witness, another non-testifying advocate may appear as trial counsel, unless barred by Colo. RPC 3.7(b).
4. Issues under other Colorado Rules may also be raised when an attorney is likely to be called as a witness, e.g., Colo. RPC 3.3 (Candor Toward the Tribunal). While this Opinion specifically mentions Colo. RPC 3.7, 1.7, 1.9 and 1.10, attorneys must be alert that, under the facts of a particular case, other Colorado Rules may apply and bear on the ethical propriety of an advocate functioning as a witness.
5. An attorney need not consult with a client or obtain client consent if the attorney reasonably concludes that neither personal interests nor responsibilities to another client or third person will materially limit the lawyer’s representation of the client by the attorney also acting as a witness. See Colo. RPC 1.7(b). Because of Colo. RPC 3.7(b)’s reversal of Model Rule 3.7(b)’s presumption, it is not clear that an attorney may ever avoid the consultation and consent rules where another lawyer in the attorney’s firm is likely to be called as a witness. The syntactical reversal between Model Rule 3.7(b) and Colo. RPC 3.7(b) makes it unclear whether an attorney must always consult and obtain the consent of the client when another member of the attorney’s firm is likely to be called as a witness, or only in those circumstances where Rule 1.7, by its own terms, requires consultation and consent. As a practical matter, because of the potential disadvantages to the client, and the potential conflict of interest whenever an advocate contemplates also acting as a witness, the better practice is for the attorney to undertake this dual role only after consultation with and the fully informed consent of the client.
6. Williams, a criminal case decided under the Code, was explained by the Colorado Supreme Court in Taylor v. Grogan, 900 P.2d 60 (Colo. 1995):
In Williams v. District Court, 700 P.2d 549, 553 (Colo. 1985), we examined the ethical considerations that "necessarily arise when an attorney of record is subpoenaed by opposing counsel in order to testify against the subpoenaed attorney’s client in a pending trial." We concluded that an attorney may subpoena opposing counsel to testify adversely to his client only after showing:
(1) that [opposing counsel’s] testimony will be actually adverse to [his or her client]; (2) that the evidence sought to be elicited from the lawyer will likely be admissible at trial under the controlling rules of evidence; and (3) that there is a compelling need for such evidence, which need cannot be satisfied by some other source.
Williams, 700 P.2d at 555-56 (footnotes omitted).
. . . .
Williams was a criminal case in which the prosecution subpoenaed the attorney of the accused as a prosecution witness. DR 5-102(B) was applicable to both civil and criminal cases. In our view, the Williams factors are equally applicable in the civil context.
Taylor v. Grogan, 900 P2d. at 62 & n.5.
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