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ACTEC COMMENTARIES ON THE MODEL RULES OF PROFESSIONAL CONDUCT
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(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 the 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.
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| MRPC 3.7 is intended to avoid or eliminate not only possible conflicts of interest between lawyer and client but also situations in trial that may prejudice the opposing party when the lawyer combines or intermingles his or her role as an advocate with that as a witness.
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| The first two exceptions to acting as an advocate at trial when the lawyer is “likely to be a necessary witness” are straightforward and uncontroversial. Exception two is commonly encountered in estate, trust and protective proceedings where the reasonableness of the attorney's compensation for legal services may be an issue and testimony by the lawyer(s) involved is required to resolve the dispute. The third or “substantial hardship” exception involves a balancing of the interests of the client in keeping his or her counsel (despite counsel's involvement as a witness) and the possible prejudice to the opposing party. In determining prejudice, the trier of fact will look to the nature of the case, the importance and probable tenor of the lawyer's testimony and the probability that the lawyer's testimony may conflict with that of other witnesses. However, even if a risk of prejudice to the opposing party exists, the court will nevertheless consider the negative effects of disqualification on the lawyer's client. In applying this Rule, the principle of imputed disqualification (MRPC 1.10: Imputation of Conflicts of Interest; Disqualification: General Rule) does not apply.
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| MRPC 1.7 (Conflict of Interest: Current Clients) and MRPC 1.9 (Duties to Former Clients) often come into play:
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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. Comment, MRPC 3.7.
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| Problems implicating MRPC 3.7 typically arise in such estate and trust litigation matters as will contests, surcharge actions, will and trust interpretation cases involving extrinsic evidence, disputes among heirs and beneficiaries and, sometimes, tax litigation. The estates and trusts lawyer who is likely to be a “necessary witness” in a trial involving his or her client must carefully parse the decisions involving lawyer and law firm disqualification under MRPC 3.7 as well as the cases arising under MRPC 1.7 (Conflict of Interest: Current Clients); MRPC 1.9 (Conflict of Interest: Duties to Former Clients); and MRPC 1.10 (Imputations of Conflicts of Interest: General Rule).
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| See also the Annotations following the ACTEC Commentaries on MRPC 1.7 and MRPC 1.9.
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| Cases |
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Arkansas: |
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Smith v. Estate of Iola Wharton, 78 S.W.3d 79 (Ark. 2002) The general rule is that a lawyer should
not act as an advocate at a trial in which the lawyer is likely to be a necessary witness. There are three
exceptions under the rule when a lawyer may act as a witness: (1) when the testimony relates to an
uncontested issue; (2) when the testimony relates to the nature and value of legal services rendered in
the case; or (3) when the disqualification of the lawyer would work a substantial hardship on the
client. The court stated that the term “disqualification” that appears in the third exception does not
refer to the exclusion of a lawyer’s testimony; rather, it refers to a lawyer’s disqualification as an advocate.
In other words, under the third exception, the lawyer should not be disqualified as an advocate
if such disqualification would work substantial hardship on the client.
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Delaware: |
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Estate of Waters, 647 A.2d 1091 (Del. 1994). In this case the Supreme Court of Delaware ruled that
the trial court had committed “plain error” by allowing an attorney to appear in a will contest both as
trial advocate on behalf of the estate and as a necessary witness testifying on the contested issues of
undue influence and testamentary capacity. The court observed:
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Under the facts of this case, the centrality of [the lawyer’s] testimony to the contested issues of
undue influence and testamentary capacity mandated his withdrawal as trial attorney. [Citations
omitted.] Unlike other members of the Delaware Bar confronted by the same ethical obligation in
the past, [the lawyer] failed to recognize his duty as a lawyer/witness to withdraw, even after
opposing counsel called it to his attention. 647 A.2d at 1098.
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Florida: |
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Devins v. Peitzer, 622 So. 2d 558 (Fla. Dist. Ct. App. 1993). In this will contest the court refused to
disqualify the estate’s lawyer solely because the contestants had announced their intention to call the
lawyer as an adverse witness on their own behalf. The court found that MRPC 3.7 was not designed
to permit a party to disqualify opposing counsel merely by calling him or her as a witness.
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Nebraska: |
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State ex rel. Nebraska State Bar Ass’n v. Neumeister, 449 N.W.2d 17 (Neb. 1989). A lawyer was disciplined
for failing to withdraw from representation of a client, now in a nursing home, the relatives
of whom had petitioned for conservatorship, when the lawyer knew he would be a material witness
for the client concerning her mental capacity.
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New York: |
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Bingham v. Zolt, 823 F. Supp. 1126 (S.D.N.Y. 1993). A lawyer acting as ancillary administrator of a
deceased singer’s estate was permitted to testify in an estate’s civil RICO action against the singer’s
former legal and financial advisors since the lawyer was not representing the estate in the RICO
action.
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Pennsylvania: |
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Pew Trust (2), 16 Fid. Rep. 2d 80 [Montg. Cty (Pa.) 1995]. The Pennsylvania Orphans Court granted
the petition of certain trust beneficiaries to disqualify the law firm representing the trustee in related
actions challenging, among other things, the prudence of the trustee’s reliance on certain tax and legal
opinions previously rendered by the law firm to support a material corporate transaction entered into
by the trustee. The court found that certain of the firm’s lawyers were “likely to be called as necessary
witnesses” and that the firm and its lawyers must be disqualified from trying the case. Although
the court acknowledged that the law firm had never served as counsel for the trust’s beneficiaries and,
consequently, the firm’s only client was the trustee, disqualification of the entire firm was warranted
in light of the “derivative” duties owed by the law firm to the trust’s beneficiaries. Pew, supra, citing
16 Fid. Rep. 2d at 84-85 (citing extensively to the ACTEC Commentary on MRPC 1.2).
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Virginia: |
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Estate of Andrews v. U.S., 804 F. Supp. 820 (E.D. Va. 1992). The court disqualified counsel for the
estate from representing the estate in a tax refund action where counsel’s law partner not only was a
party to the action in his representative capacity as a co-executor of the will but also was to be called
to testify as a material witness at trial.
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West Virginia: |
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State ex rel. DeFrances v. Bedell, 446 S.E.2d 906 (W.Va. 1994). This case is discussed in the
Annotations following
the ACTEC Commentary on MRPC 1.7.
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| Ethics Opinion |
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Texas: |
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Op. 439 (1987). An attorney prepared a will, signed by two witnesses, and acted as notary thereof. After
filing the will for probate and acting as counsel for the petitioner, a contest of the will was filed claiming
that the document was not executed in accordance with the applicable law and that the testator did
not have testamentary capacity. Contestant filed a motion to disqualify the attorney who had prepared
and notarized the will, and the issue presented was whether or not the attorney should be disqualified
from continuing to act as attorney for the executor (who was also the sole beneficiary under the will).
The Texas Committee on Professional Ethics held that the attorney could not continue to act under
these circumstances (following Texas Opinion 234 (1961), holding that the law partner of a lawyer who
had drafted a will, deed and contract for a client, the validity of which instruments were attacked after
the client’s death on grounds of fraud, undue influence and mental incapacity of the client, could not
serve as counsel since the lawyer knew his partner would be a material witness).
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