AS THE TEXT OF THE
ELEMENT IS LIMITED
TO BEING TRIAL
COUNSEL IN A CASE
IN WHICH THE
LAWYER WILL BE A
National Assurance Company, 276 F. Supp. 3d 1046, 1065-66
(W.D. Wash. 2017), for example, the federal district court in
Seattle found that the lawyer-witness rule did not apply to
summary judgment proceedings.
To be personally disqualified from acting as trial counsel,
a lawyer must be, in the vernacular of the rule, a “necessary”
witness. The Washington Supreme Court set a relatively
high bar in this regard in Public Utility Dist. No. 1 of Klickitat
County v. International Insurance Company, 124 Wn.2d 789,
812, 881 P.2d 1020 (1994):
When an attorney is to be called . . .a motion for
disqualification must be supported by a showing
that the attorney will give evidence material to
the determination of the issues being litigated,
that the evidence is unobtainable elsewhere[.]
The federal district courts for the Western and Eastern
Districts of Washington have used this same standard in,
respectively, Microsoft Corp. v. Immersion Corp., 2008 WL
682246 (W.D. Wash. March 7, 2008) (unpublished), and
Tonasket v. Sargent, 2011 WL 13090760 (E.D. Wash. July 7,
In State v. Schmitt, 124 Wn. App. 662, 666-67, 102 P.3d
856 (2004), the Court of Appeals noted that the burden of
demonstrating that a lawyer is a “necessary” witness is on
the party seeking the lawyer’s disqualification. Further, the
Court of Appeals explained in Barbee v. Luong Firm, P.L.L.C.,
126 Wn. App. 148, 159-60, 107 P.3d 762 (2005), that the mere
possibility that a lawyer will be a witness is not sufficient to
invoke the remedy of personal disqualification. In State v.
Sanchez, 171 Wn. App. 518, 546, 288 P.3d 351 (2012), the Court
of Appeals also found that a lawyer was not a “necessary”
witness when the information involved could be obtained
through another readily available source.
RPC 3. 7 includes four practical exceptions.
First, RPC 3. 7(a)( 1) permits a lawyer to be both an
advocate at trial and a witness on an uncontested matter.
Comment 3 to RPC 3. 7 notes in this regard that “if the
testimony will be uncontested, the ambiguities in the dual
role are purely theoretical.” In State v. Tolias, 135 Wn.2d
133, 137, 954 P.2d 907 (1998), for example, the Washington
Supreme Court concluded that a lawyer’s personal
disqualification was not required when the lawyer’s testimony
on uncontested facts was introduced through a stipulation.
Second, RPC 3. 7(a)( 2) allows a lawyer to testify about
the nature and value of legal services provided in the case.
Comment 3 to RPC 3. 7 observes 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 a new lawyer to resolve that
issue.” The federal district court in
Seattle extended this exception to
related cases in which attorney fees
were at issue in Aecon Bldgs., Inc.
v. Zurich North America, 2008 WL
2940599 (W.D. Wash. July 24, 2008)
(unpublished), and American Safety
Casualty Insurance Company v.
Happy Acres Enterprises Co., Inc.,
2017 WL 279616 (W.D. Wash. Jan. 20,
Third, RPC 3. 7(a)( 3) creates a
“hardship” exception. This exception
might be triggered, for example, if the
trial lawyer’s testimony could not be
anticipated and the issue arose in the
middle of a trial. Comment 4 to RPC
3. 7 notes that the trial judge is in the
best position to assess whether this
exception applies. Comment 4 also
cautions, however, that reasonable
foreseeability is a primary factor
in balancing the equities involved.
In Lease Crutcher Lewis WA, LLC
v. National Union Fire Insurance of
Pittsburg, 2010 WL 11527179 (W.D.
Wash. Sept. 27, 2010) (unpublished),
for example, the court denied a motion
to disqualify counsel, filed shortly before
trial, where it appeared that the potential
lawyer-witnesses would not add materially
to the evidence, their involvement had
been known for some time, and their
disqualification would create a substantial
hardship on their client.
Fourth, RPC 3. 7(a)( 4) permits
trial counsel to remain when the
opposing party called the lawyer and
the court rules that the lawyer may
continue to handle the trial. Comment
8 to RPC 3. 7 stresses that the lawyer-witness rule is not intended to be used
inappropriately as a litigation tactic
and “[p]aragraph (a)( 4) is intended
to confer discretion on the tribunal in
determining whether disqualification
is truly warranted[.]” In Adams v.