June 12, 2013 § 5 Comments

On two occasions this year I have seen lawyers take the witness stand and, with absolutley no objection from the other side —  not even a quiver of objection — have proceeded to testify as to the merits of the matter at hand. In neither case was the testimony dispositive.

That flies in the face of my preconceived notion that lawyers who are representing a party in a case are not supposed to testify in that case, except as to attorney’s fees and, possibly purely procedural matters.

So I checked Jeffrey Jackson and Donald Campbell’s excellent Professional Responsibility for Mississippi Lawyers, MLI Press, 2010, and — voila! — here is what they say at § 25: 8, p. 25-10:

 At trial, a lawyer is an advocate, and not a witness. A lawyer who is in the position of being a material witness would usually be  disqualified from representation under [Mississippi Rules of Professional Conduct] Rule 3.7, which seeks to avoid jury confusion over the lawyer’s advocate and witness roles. If a lawyer acts as an advocate, she should not assert personal knowledge of facts at trial. Such assertions of personal knowledge are prohibited under [Mississippi Rules of Professional Conduct] Rule 3.4(e) except when the lawyer is otherwise properly testifying as a witness. [Footnote omitted]

The text alludes to juries, but I think it is applicable also to bench trials also where the lawyer takes the witness stand and acts as a material witness. The lawyer intends for the testimony to be taken as substantive and given probative weight, when the witness was — or should have been — disqualified from testifying in the first place.

The official Comment to Rule 3.7 says that, “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.” The Comment adds that the opposing party has an objection whenever the combination of roles may prejudice that party’s rights in the litigation. 

The provision in Rule 3.7 that lawyers who are material (the word “necessary” is used in the rule) witnesses are disqualified has the obvious purpose of prohibiting lawyers from avoiding the witness stand by taking cover behind the advocate’s role and its prohibition against testifying.

With the exception of attorney’s fees, I don’t think it’s a good idea for lawyers in a representative capacity to take the witness stand.

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  • Ben Robinson says:

    Correction: The first author on the Professional Responsibility book is Professor Jeffrey Jackson. The post gives his last name as “Johnson.”

  • Hale says:

    Just reminds me of how we, as attorneys want to control everything, including who gets to keep the case and the outcome of trial.
    The attorney ultimately controlled the outcome by settling the will contest you mentioned. Trials are risky, the the attorney got the message when he appeared before you. Occasionally that is what attorneys and their clients need.

  • Hale says:

    Another comment worth saving for future reference
    A good explanation of the distinction between a witness and an advocate is contained in Pearson v. Parsons, 541 So.2d 447 (Miss. 1989).
    Taking the stand can disqualify the attorney as an advocate too.

    • Larry says:

      Thanks for the cite.

      What has surprised me is how opposing counsel just lets it sail by as if it were the most natural thing in the world.

      I did disqualify an attorney in a case who suggested to me that he might be disqualified. A contest over a will developed in an estate, and in a motion hearing early on the attorney representing the executor stated on the record that he was the attorney who prepared the will and could verify the testator’s competence. I pointed out that he was a most material witness, and that he’d better get busy lining up substitute counsel. He did, and after much saaber-rattling, the case settled short of a trial on competence.

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