RPC RULE 3.7
                            LAWYER AS WITNESS


  (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;

     (3) disqualification of the lawyer would work substantial hardship on
the client; or

     (4) the lawyer has been called by the opposing party and the court
rules that the lawyer may continue to act as an advocate; or

  (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.

Comment

  [1] Combining the roles of advocate and witness can prejudice the
tribunal and the opposing party and can also involve a conflict of
interest between the lawyer and client.

Advocate-Witness Rule

  [2] The tribunal has proper objection when the trier of fact may be
confused or misled by a lawyer serving as both advocate and 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.

  [3] [Washington revision] 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)(4). 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.

  [4] Apart from these two exceptions, paragraph (a)(3) recognizes that a
balancing is required between the interests of the client and those of the
tribunal and the opposing party. Whether the tribunal is likely to be
misled or 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 conflict of interest principles stated in
Rules 1.7, 1.9 and 1.10 have no application to this aspect of the problem.

  [5] Because the tribunal is not likely to be misled when a lawyer acts
as advocate in a trial in which another lawyer in the lawyer's firm will
testify as a necessary witness, paragraph (b) permits the lawyer to do so
except in situations involving a conflict of interest.

Conflict of Interest

  [6] [Washington revision] In determining if it is permissible to act as
advocate in a trial in which the lawyer will be a necessary witness, the
lawyer must also consider that the dual role may give rise to a conflict
of interest that will require compliance with Rules 1.7 or 1.9. 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) or (a)(4) 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. Determining whether or not such a conflict exists is
primarily the responsibility of the lawyer involved. If there is a
conflict of interest, the lawyer must secure the client's informed
consent, confirmed in writing. In some cases, the lawyer will be precluded
from seeking the client's consent. See Rule 1.7. See Rule 1.0(b) for the
definition of "confirmed in writing" and Rule 1.0(e) for the definition of
"informed consent."

  [7] Paragraph (b) provides that a lawyer is not disqualified from
serving as an advocate because a lawyer with whom the lawyer is associated
in a firm is precluded from doing so by paragraph (a). If, however, the
testifying lawyer would also be disqualified by Rule 1.7 or Rule 1.9 from
representing the client in the matter, other lawyers in the firm will be
precluded from representing the client by Rule 1.10 unless the client
gives informed consent under the conditions stated in Rule 1.7.

Additional Washington Comment (8)

  [8] When a lawyer is called to testify as a witness by the adverse
party, there is a risk that Rule 3.7 is being inappropriately used as a
tactic to obtain disqualification of the lawyer. Paragraph (a)(4) is
intended to confer discretion on the tribunal in determining whether
disqualification is truly warranted in such circumstances. The provisions
of paragraph (a)(4) were taken from former Washington RPC 3.7(c).


[Amended effective September 1, 2006.]