Disqualification under Rule 3.7 (lawyer as witness): consent doesn't always cure

Sometimes lawyers are just lawyers. But sometimes they are more. In certain cases a litigant may be represented by a lawyer who is also a family member and, therefore, a key witness.

In such cases, California Rule of Professional Conduct 3.7 (Lawyer as Witness), provides, in part: "(a) A lawyer shall not act as an advocate in a trial in which the lawyer is likely to be a witness unless: (1) the lawyer's testimony relates to an uncontested issue or matter; (2) the lawyer's testimony relates to the nature and value of legal services rendered in the case; or (3) the lawyer has obtained informed written consent* from the client..."

As discussed below, evaluating whether Rule 3.7 provides a basis to disqualify a lawyer witness can require an intricate analysis.

Is the Trial Lawyer Really a Witness?

Whether a motion to disqualify based on Rule 3.7 is viable will depend, in part, on whether trial counsel is really a witness.

Some ways to establish that the lawyer witness is truly a witness (and that the motion to disqualify is not merely a strategic device) include, but are certainly not limited to: (1) whether any party identified the lawyer as a witness in written discovery responses; (2) whether any party has subpoenaed the lawyer witness for deposition; and/or (3) whether the potential for the lawyer testifying has already been referenced in some other context (for example, in depositions, did any deponent mention the lawyer witness?).

If the evidence does not support that counsel is also a witness, a motion to disqualify will probably be unsuccessful. On the other hand, if the evidence supports that counsel is legitimately a witness, a motion to disqualify may be viable.

Does Client Consent Cure?

Even if one can establish that the lawyer witness is legitimately a witness who would be subject to Rule 3.7, the next inquiry in the analysis is whether the lawyer witness's client consented to the lawyer's dual role, and, if so, whether that consent will satisfy a court.

Comment 3 to Rule 3.7 clarifies that the informed consent exception is not absolute. "Notwithstanding a client's informed written consent, courts retain discretion to take action, up to and including disqualification of a lawyer who seeks to both testify and serve as an advocate, to protect the trier of fact from being misled or the opposing party from being prejudiced." Id., com. 3, citing Lyle v. Superior Court 122 Cal.App.3d 470 (1981).

Whether informed consent is curative depends, at least in part, on whether the party seeking to disqualify the lawyer witness can demonstrate that continued representation would undermine the integrity of the judicial process or confuse the trier of fact.

Doe v. Yim, 55 Cal.App.5th 573, 582 (2020) is instructive. There, the plaintiff sued her stepfather for sexual abuse. The plaintiff was represented by her mother (who had been previously married to the stepfather defendant and was, purportedly, a key witness). The plaintiff gave informed consent to her mother's dual role. Despite that consent, the court disqualified the mother, noting that "a court retains discretion to disqualify a likely advocate-witness as counsel, notwithstanding client consent, where there is 'a convincing demonstration of detriment to the opponent or injury to the integrity of the judicial process.'" The court went even further than the express limitation in Rule 3.7 (which references serving as an advocate "in trial"), exercising its discretion to disqualify mother from representing the plaintiff not only in trial, but also in evidentiary hearings and depositions.

Although it predates current Rule 3.7, Kennedy v. Eldridge, 201 Cal.App.4th 1197 (2011) is also instructive. In that case, the mother and father were litigating the child's paternity. Father's father (i.e., the paternal grandfather) represented the father in those proceedings. Mother moved to disqualify. The court held disqualification of the father's father (the lawyer witness) was appropriate, holding in part 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." Id. at 1205. The court specifically held that Rule 5-210 (predecessor to Rule 3.7) supported disqualification even where the litigation did not involve a jury trial. Id. at 1209. Notably, that court did not discuss informed consent; however, based on the court's holding, it is likely that consent (also permitted under the old rule) would likely not have been curative.

To show that disqualification is warranted notwithstanding client consent, the party seeking disqualification will want to establish that allowing the lawyer witness to serve dual roles would undermine the integrity of the judicial process and/or confuse the trier of fact. See Lyle, supra, and Doe v. Yim, supra.

Additional Considerations

With disqualification motions, courts are often watchful for motions that are tactical in nature. Signs that a motion to disqualify is tactical, versus legitimate, include how the conflict impacts the moving party, how promptly the moving party acted, and how close to trial the moving party brings its motion.

Provided the moving party can demonstrate the conflict is legitimate, that a consent would not be curative, that the moving party acted promptly when learning of the lawyer's dual role, and that the motion is not being brought on the eve of trial, it may be worthwhile to pursue a motion to disqualify a lawyer witness.

Finally, while it is customary to meet and confer before bringing a motion to disqualify, use caution. Given Rule 3.10 (Threatening Criminal, Administrative, or Disciplinary Charges), it is safest to avoid raising the potential motion to disqualify in some other context (for example, in a settlement conference).