MARK J. FUCILE of Fucile & Reising LLP handles
professional responsibility, regulatory, and
attorney-client privilege matters and law-firm-
related litigation for lawyers, law firms, and legal
departments throughout the Northwest. He also
teaches legal ethics as an adjunct for the University of Oregon
School of Law at its Portland campus. He can be reached at
503-224-4895 and Mark@frllp.com.
New York Life Insurance Company, 2008 WL 11338298 (E.D.
Wash. Dec. 10, 2008) (unpublished), for example, the court
concluded that a defendant’s contention shortly before trial
that it intended to call plaintiff’s trial counsel was simply a
litigation tactic, and the court advised that it would allow the
lawyer to remain under RPC 3. 7(a)( 4) even if the defendant
persisted in its effort to call the lawyer at trial.
When RPC 3. 7 was adopted in Washington in 1985, a lawyer’s
personal disqualification as a witness was imputed to the
lawyer’s firm as a whole. In 2006, however, RPC 3. 7 was
amended to remove this automatic firm disqualification.
Instead, firm disqualification under RPC 3. 7(b) now turns on
whether the lawyer-witness’ testimony creates a conflict for the
firm as a whole under RPC 1. 7 or 1. 9, which govern, respectively,
current and former client conflicts. This situation ordinarily arises
when a lawyer-witness’ testimony will be materially adverse to the
client the lawyer’s firm is representing in the matter concerned.
By way of illustration, a firm business lawyer who negotiated a
contract for a client, and whose testimony at a subsequent trial
over the meaning of a key term will support the opposing party,
creates a disqualifying conflict for the lawyer’s firm as a whole.
Although Comment 6 to RPC 3. 7 suggests that a
firm lawyer-witness conflict may be waivable in some
circumstances, the practical barriers to meeting the conflict
waiver standards in this context usually mean that the firm
must withdraw. In State v. O’Neil, 198 Wn. App. 537, 547, 393
P.3d 1238 (2017), the court discusses a firm lawyer-witness
conflict as resulting in “obligatory disqualification.” Although
O’Neil was a narrow holding on unusual facts where the
potential testifying lawyer was supervised by the defendant’s
trial lawyer, it illustrates the unpredictable practical barriers that
can impede an effective waiver. In short, if a lawyer’s testimony
ripens to the level of a conflict for the firm as a whole, the most
likely practical outcome is that the firm is “out.”