The Lawyer-Witness Rule
THE LAWYER-WITNESS RULE, RPC 3. 7, HAS BEEN AROUND FOR A LONG TIME. IN FACT, AN EARLIER VERSION was one of the original ABA Canons of Professional Ethics adopted in 1908. At the same time, it remains a frequently misunderstood rule. Although RPC 3. 7 can ripen into a rule of law-firm disqualification, it is more often limited to the personal disqualification of a lawyer-witness. But even the latter is not absolute and there are several exceptions.
In this column we’ll first examine the circumstances when a lawyer-witness is personally disqualified and the scope of that
disqualification. Next, we’ll survey the exceptions. Finally, we’ll discuss situations when a lawyer’s personal disqualification ripens
into a disqualification of the lawyer’s entire law firm.
RPC 3. 7(a) prohibits a lawyer from “act[ing] as advocate at a
trial in which the lawyer is likely to be a necessary witness[.]”
The Washington rule is patterned on the corresponding ABA
Model Rule and in terms of personal disqualification has
remained relatively unchanged since Washington adopted the
ABA Model Rules in 1985.
As the text of the rule suggests, the personal
disqualification element is limited to being trial counsel in
a case in which the lawyer will be a trial witness. Comment
2 to RPC 3. 7 explains the rationale underlying this personal
disqualification: “[T]he trier of fact may be confused or
misled by a lawyer serving as both advocate and witness.”
The Washington Supreme Court in In re Pfefer, 182 Wn.2d
716, 725-26, 344 P.3d 1200 (2015), noted that the rule also
applies in other trial-like proceedings such as arbitrations and
administrative hearings. Civil Rule 43(g) contains a similar
prohibition specific to civil jury trials.
Because the personal disqualification is limited to being
trial counsel, another lawyer at the same firm could handle the
trial—as long as the nature of the lawyer-witness’ testimony is
not adverse to the law firm’s client, creating a conflict under
RPC 1. 7(a)( 2). Further, a lawyer-witness generally remains able
to participate in other aspects of a case. In In re PPA Products
Liability Litigation, 2006 WL 2473484 (W.D. Wash. Aug. 28,
2006) (unpublished), and Snohomish County v. Allied World