Georgia Rule of Professional Conduct 3.7 discusses when a lawyer can and cannot act as both an advocate and witness on behalf of a client.
Under Rule 3.7, a lawyer is generally not allowed to act as an advocate at a trial in which he or she is likely to be a necessary witness. However, there are a few exceptions to this rule. A lawyer-advocate may be a witness where:
- the testimony relates to an uncontested issue;
- the testimony relates to the nature and value of legal services rendered in the case; or
- disqualification of the lawyer would work substantial hardship on the client.
The purpose of Rule 3.7 is to prevent an attorney from being in the awkward position of acting as both a witness and an advocate at trial. Indeed, combining the roles of advocate and witness can prejudice an opposing party and can create a conflict of interest between lawyer and client.
Problems that might arise include:
The possibility that, in addressing the jury, the lawyer will appear to vouch for his own credibility; … the unfair and difficult situation which arises when an opposing counsel has to cross-examine a lawyer-adversary and seek to impeach his credibility; and … the appearance of impropriety created, i.e., the likely implication that the testifying lawyer may well be distorting the truth for the sake of his client.
There is also a high likelihood of juror confusion about which role the lawyer is serving during the trial. Comment 2 to Rule 3.7 notes 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.” Thus, a fact-finder may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof.
Whether an opposing party is likely to suffer prejudice due to a lawyer witness “depends on the nature of the case, the importance and probable tenor of the lawyer’s testimony, and the probability that the lawyer’s testimony will conflict with that of other witnesses.” Rule 3.7, Comment 4. But even if there is risk of such prejudice, in determining whether the lawyer should be disqualified, a court must give due regard to the effect of disqualification on the lawyer’s client.
A party moving to disqualify a lawyer under Rule 3.7 has the burden of showing that the lawyer “is likely to be a necessary witness” by demonstrating (1) that the lawyer’s testimony is relevant to disputed, material questions of fact and (2) that there is no other evidence available to prove those facts. See Clough. However, even where a lawyer is likely to be a necessary witness at trial, Rule 3.7 may not preclude a lawyer from continuing to represent a client prior to the trial. Id.