Calling attorneys as witnesses can snarl cases
At times, the role of an attorney goes beyond that of an advocate for a client. In rare situations, an attorney may also become a witness. An attorney may anticipate becoming a witness or may become a necessary witness during a case; an attorney may be called as a witness by an opposing party or may serve as an expert witness.
There is, however, an inherent conflict between these two functions as the attorney’s role as an advocate is to make persuasive arguments to the court on behalf of the client; while as a witness, the attorney should only testify based on personal knowledge. Consequently, this dichotomy is likely to lead to the confusion of the court and the jury and may prejudice them against the client. Furthermore, any testimony by the attorney might violate the attorney-client privilege.
For those reasons, an attorney is generally prohibited from acting as an advocate at a trial in which that attorney is likely to be a necessary witness. The rule allows for certain exceptions. An attorney is allowed to testify as a witness in an uncontested matter because any confusion caused by the attorney’s dual role would most likely have no impact on the outcome of the matter. In addition, in order to avoid the need for a separate proceeding, an attorney can testify regarding the nature and value of legal services rendered in the case. Lastly, if the disqualification of an attorney would result in substantial hardship to the client, the court will allow such testimony. However, in every situation the court will carefully balance the risk of prejudice against the detriment to the client so the request for a disqualification of an attorney is not used as a trial tactic.
Generally, an attorney may act as an advocate in a trial in which another attorney in that attorney’s firm is likely to be called as a witness, unless such testimony would create a conflict of interest, such as testifying for the opposing party.
When an attorney testifies as an expert in a case, no attorney-client relationship is formed between the attorney and the client for whom that attorney testifies. Regardless, a representation of an adverse party in the same case in which the attorney testifies as a witness for the client is not allowed. Subsequent representation may also be prohibited if the representation would result in the disclosure of confidential information or if the representation would be substantially impaired by the need to protect the former client’s confidentiality. Finally, if the attorney becomes an expert consultant, then the attorney-client relationship is established and the rules addressing conflict of interest apply to that attorney’s conduct.
Sometimes, an attorney may provide an evaluation of a client’s matter for the use of someone other than the client if the attorney reasonably believes that making the evaluation is compatible with other aspects of the attorney-client relationship. So, if such evaluation would adversely affect the client, then the attorney should not provide it unless the client gives informed consent. Further, while performing the evaluation, the attorney remains bound by the duties of loyalty and confidentiality to the client.
An evaluation may be requested by the client in order to provide further information to third parties. It may be required by law. Or it may constitute a necessary part of representation when the information has to be provided to third parties in order to complete a business transaction.
It is very important that the attorney’s role in every case is very clear and that they understand their duties and limitations as both an advocate and a witness.
Natalia Vander Laan is a Minden attorney practicing estate planning, family law, and workers’ compensation.