Most lawyers are comfortable in the role of advocate, arguing in favor of a client's position with the hope of winning the day. But on occasion, counsel in a given case may also be called upon to serve as a material witness - and when that occurs, a number of things can happen, not all of them good.
On the plus side is the prospect of standing by a client and going the extra mile. But "lawyer-witnesses" pose a host of important ethical issues. Indeed, the prospect of simultaneously acting as both a lawyer and witness for a client is fraught with peril; this is a time when less is more, and filling fewer roles for the client is usually the safer path to follow.
The Risk of Disqualification
A recent case illustrates the problems that arise when lawyers try to serve their clients as both an advocate and a witness: Lawyer-witnesses are prone to act in ways that undermine the appearance of the orderly administration of justice, and they create inherent conflicts of interest.
The case in point involves an attorney who was also the grandfather of an infant child whose unmarried parents were involved in a bitter dispute over paternity, child support, and custody. When he sought to represent the child's father (his son) and stood ready to offer testimony about the battling couple's lifestyle and parenting skills, the child's mother moved to disqualify him. (See Kennedy v. Eldridge, 201 Cal. App. 4th 1197 (2011).)
The infant in question, Calvin Kennedy-Eldridge, was the son of Kayla Kennedy and Tyler Eldridge, a college student. Tyler's father, the lawyer Richard Eldridge, also had client and business relationships with Kennedy and her family members.
The paternity/support proceedings rapidly devolved into an unseemly exchange of accusations regarding Tyler's and Kayla's behavior, home lives, purported use of marijuana, and more.
Kayla moved to disqualify Richard as Tyler's counsel in the custody case on the grounds that Richard had represented her father in a previous divorce proceeding, and during that representation he had conferred with her stepmother and Kayla had provided a declaration to Richard's law firm in connection with the divorce case. In addition, Kayla had worked for Richard's law firm, and for these reasons she contended that Richard had access to confidential information he might use against her in the dispute with Tyler.
Tyler opposed the motion to disqualify on the ground that Kayla lacked standing: Because she was never Richard's client, he argued, Richard owed her no duty of loyalty or confidentiality that he would breach by representing Tyler.
The trial court rejected that reasoning, concluding that Kayla had standing to bring the disqualification motion and that Richard's role as an advocate for Tyler and potentially as a witness in the present custody dispute compromised the integrity of the judicial process. (201 Cal. App. 4th at 1211.) The trial court also found that baby Calvin's best interests were not served by having his paternal grandfather represent his father, adverse to the child's mother. (201 Cal. App. 4th at 1212.)
Richard appealed, arguing that Kayla was not a former client of his and therefore lacked standing to challenge his representation of Tyler; that Richard had not acquired confidential information about Kayla by virtue of his firm having presented Kayla's father; and that the trial court had misapplied the advocate-witness rule.
Standing for a Nonclient
The court of appeal affirmed the disqualification. It found that Kayla had standing to bring the disqualification motion, regardless of the fact that she was never a client of Richard or his law firm. The court also noted that no California case sets forth such a requirement. Additionally, the court held that the trial court had inherent authority to manage the proceedings before it so that any person might, in appropriate circumstances, bring a motion to disqualify opposing counsel, stating: "The paramount concern must be to preserve public trust in the scrupulous administration of justice and the integrity of the bar." (201 Cal. App. 4th at 1204.)
While acknowledging that federal courts limit standing in disqualification motions to clients or former clients, the court of appeal declared that California has no such limitation. "It makes no sense for a court to stand idly by and permit conflicted counsel to participate in a case merely because neither a client nor former client has brought a motion." The court stressed that trial judges have "an independent interest in ensuring trials are conducted within ethical standards of the profession and that legal proceedings appear fair to all that observe them." It concluded that "where an attorney's continued representation threatens an opposing litigant with cognizable injury or would undermine the integrity of the judicial process, the trial court may grant a motion for disqualification, regardless of whether a motion is brought by a present or former client of recused counsel." (201 Cal. App. 4th at 1205.)
The court of appeal ruled that absent an attorney-client relationship, a lawyer's mere exposure to the confidences of an adversary does not, alone, warrant disqualification. However, where the attorney - through prior representation or improper means - obtains information that would likely be advantageous, disqualification is proper.
Even though Kayla had never been Richard's client, the court held that there was a potential for confidential information to be at issue. Richard's firm had represented Kayla's father, and Kayla had provided a declaration in his divorce proceedings. The court reasoned that by virtue of these facts, Richard might have obtained confidential information about Kayla's family and home life that he and Tyler could use to her detriment in the custody battle, where issues about family behavior and home life might well be front and center.
Further, the court ruled that Kayla and her father could be regarded as one entity by virtue of the "unity of interest" and "substantial relationship" tests. When a substantial relationship has been shown to exist between the former representation and the current representation, and when it appears that confidential information material to the current dispute would normally have been imparted to the attorney or to subordinates for whose legal work he was responsible, "the attorney's knowledge of confidential information is presumed." (201 Cal. App. 4th at 1208 (emphasis by the court).)
Because of the close relationship between Kayla and her father, the similarity between the present custody case and the prior divorce case, and the overlapping factual issues common to both, the appellate panel concluded that Kayla and her father "should be treated as a single unity for purposes of determining whether an ethical conflict exists."
The Advocate-Witness Rule
But the court didn't stop there. It also affirmed disqualification based on the "advocate-witness rule" in light of the conflict posed by Richard acting as Tyler's attorney and at the same time facing the prospect of being called as a percipient witness to Kayla and Tyler's relationship, home lives, care for the child, and related factual issues.
In that regard, the court drew on Rule of Professional Conduct 5-210, which provides that a member of the bar shall not act as an advocate before a jury that will hear testimony from the member unless:
- the testimony relates to an uncontested matter; or
- the testimony relates to the nature and value of the legal services rendered in the case; or
- the member has the informed, written consent of the client. (See Cal. Rule Prof. Conduct 5-210 (A)-(C).)
The first two exceptions certainly did not apply, as the matter was contested and did not involve fees. The third exception also did not apply, as Kayla obviously did not consent to Richard's participation as a witness.
Even so, Richard argued that Rule 5-210 did not apply because it was directed at jury trials, whereas this custody case was to be heard by a judge. The court of appeal rejected that argument, observing that Rule of Professional Conduct 1-100 states that the prohibitions in the rules are "not exclusive" and allow consideration of other rules in assessing prohibited attorney conduct.
The court then went on to rely, in part, on the American Bar Association's Model Rules of Professional Conduct, which have no jury trial limitation on attorneys acting as advocates and witnesses in the same proceeding. "Most of the difficulties inherent in an attorney's taking on the role of both advocate and witness," said the court, "are present regardless of whether the attorney's testimony will be given in front of a jury or judge." (201 Cal. App. 4th at 1210.)
The court found no reason why it should not follow the Model Rules, pointing out that the California Supreme Court has declared that in cases where an attorney will likely testify as a material witness, the attorney should "resolve any doubt in favor of preserving the integrity of his testimony and against his continued participation as trial counsel." (201 Cal. App. 4th at 1211 (citing People v. Dunkle, 36 Cal. 4th 861, 915 (2005)).)
The court cited precedent for the proposition that "[a]n attorney who attempts to be both advocate and witness impairs his credibility as witness and diminishes his effectiveness as advocate." (See Comden v. Superior Court, 20 Cal. 3d 906, 912 (1978).) It would be impossible, in the court's view, for Richard to represent Tyler effectively when Richard would likely be called to serve as a witness as well. "Richard's continued representation of Tyler places Richard in a position where his family loyalties are in conflict, his responsibilities to his grandson are compromised, and the court would face the prospect of playing host to an awkward spectacle, where the lines between attorneys, relatives and litigants become blurred and confused." (201 Cal. App. 4th at 1212.)
Judge or Jury
As noted, on its face California Rule of Professional Conduct 5-210 applies only to jury trials. However, as the appeals court found in Kennedy, the same vices apply to dual attorney-witness roles whether the case is to be decided by a judge or jury. Indeed, counsel's credibility as both a witness and advocate can be compromised if he or she is effectively cross-examined, regardless of who serves as the trier of fact. Likewise, counsel's role can be ambiguous when arguing to the court: Is the attorney stating facts as a witness, or making contentions as counsel? Thus, as in Kennedy, although the rule may be limited to jury trials, that does not mean counsel in bench trials will be allowed to hold dual roles, nor is it necessarily a good idea even if the court were to allow it.
The testimony of counsel in a dual role may be affected by a desire to preserve his or her reputation or to advance a client's interests, as opposed to merely cooperating based upon his or her percipient knowledge. When viewed in this light, acting in a dual role potentially puts counsel in a conflict of interest subject to Rule of Professional Conduct 3-300. Although Rule 5-210(C) allows an attorney to fill two roles with the informed consent of the client, that does not eliminate the possibility of counsel being compromised by one of the conflicting interests. Nor does it alleviate the possibility of the client later claiming that consent to the attorney serving as a witness was not fully informed, or was given under duress ("My attorney said I had to consent or she could no longer represent me"). Thus, informed consent may in theory be an escape hatch, but it can be challenged and is not a perfect shield against a malpractice claim should the matter turn out badly.
The notes to Rule 5-210 state that it is not intended to apply to situations in which another member of the attorney's firm will testify as a witness. However, this is a difference of degree, not a difference in kind. The member's credibility and loyalty may not be directly at issue when a partner is testifying, but the relationship is so close that the same concerns forbidding a dual role for the attorney apply with full force.
In fact, it is hard to imagine how putting one's law partner on the stand could avoid the type conflict that disturbed the court in Kennedy v. Eldridge; concerns about how the partner appears to the court may trump how the testimony is affecting the client. And if the partner's performance as a witness has a severe and negative impact on the case, the bad vibrations surely will rub off on the partner who tried the case in addition to the one who took the stand. For that reason, the "partner may testify" exception to Rule 5-210 is more of an illusion than a safe course of action.
Advice of Counsel
One situation in which a client's attorney may, in theory, testify while the firm remains the advocate is a bad faith case. An insurance company may assert the defense that it relied on the "advice of counsel" in handling a claim in a particular fashion. (See notes to Rule 5-210.) This defense usually consists of presenting evidence of the advice offered by the insurer's coverage counsel as to whether a claim is covered. The safest way to present this defense is for the insurer to engage a different law firm to act as defense counsel, limiting the coverage attorney's role to being a witness on the issue of what advice was given.
When an attorney feels tempted to testify on behalf of a client, alarm bells should sound. While it may be tempting to serve a client as both advocate and witness, in most situations the risks outweigh the potential benefits. Whether out of concern over diminished credibility as a witness, reduced effectiveness as an advocate, or the cost and embarrassment of being targeted by a motion to disqualify, attorneys should proceed with great caution. In the end, discretion in this situation is very much the better part of valor.
Steven D. Wasserman and Mark J. Hancock are partners with Sedgwick in San Francisco, where they specialize in commercial and professional liability litigation.