Los Angeles County Bar Association Update Article: Considerations and Potential Consequences of Becoming an Advocate-Witness

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November 3, 2022

By Gayle Eskridge, of Eskridge Law, member, LACBA Professional Responsibility and Ethics Committee. Ms. Eskridge can be reached at geskridge@eskridgelaw.net. The opinions expressed below are her own.

You represent the buyer in negotiating the sale of a business; six months later, the seller sues your client for fraud relating to the contract. You engage in lengthy negotiations with your client’s employer in an attempt to acquire reasonable accommodations for your client and prevent your client from being terminated; your client is nonetheless terminated and seeks to sue the former employer. You serve as employment counsel for a company and participate in performance counseling sessions with one of its executive employees; the employee is eventually terminated and files an arbitration claim against your client.

In the above examples, it is clear you are a key witness regarding one or more contested issues. Despite this, you may be tempted to represent the client in the litigation because (1) the client insists that you do so, (2) you believe it would be more economical for the client, since you already know the case, and/or (3) you really need the business. May you serve as litigation counsel? If so, what is required in order to do so? Also, is it really a good idea?

California Rules of Professional Conduct, rule 3.7 (Lawyer as Witness) provides:

(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. If the lawyer represents the People or a governmental entity, the consent shall be obtained from the head of the office or a designee of the head of the office by which the lawyer is employed.

Rule 3.7(a) uses the phrase in a trial. Comment 1 to rule 3.7 advises us that the rule applies to a trial before a jury, judge, administrative law judge or arbitrator, but not to other adversarial proceedings, and not to non-adversarial proceedings. [1]

Courts have interpreted the rule’s use of the term trial to include any pretrial activities which carry the risk of revealing the attorney’s dual role to the jury, and have specified that, in particular, a testifying attorney should not take or defend depositions. [Doe v. Yim (2020) 55 Cal.App.5th 573, 583 (“Doe”).] Therefore, in order to be an advocate for purposes of the advocate-witness rule, you need only be involved in pretrial activities. (If you were thinking it would be acceptable to handle the litigation up to trial, as long as some other attorney handled the actual trial, you would most likely be mistaken.) Are there some tasks an attorney could undertake on the case which would not make them an advocate for purposes of the advocate-witness rule? The holding in Doe implies there would be so long as those tasks do not carry the risk of revealing the attorney’s dual role to the trier of fact. [Id.] For example, an attorney who expects to testify at trial, should not sit at counsel table or cross-examine any witnesses, as this would clearly reveal the attorney’s dual role to the jury.

Just what does an informed written consent mean as used in rule 3.7(a)(3)? Comment 2 to rule 3.7 provides:

A lawyer’s obligation to obtain informed written consent* may be satisfied when the lawyer makes the required disclosure, and the client gives informed consent* on the record in court before a licensed court reporter or court recorder who prepares a transcript or recording of the disclosure and consent.

Although Comment 2 states that the client can give informed consent on the record in court, it is normally much better to obtain a written informed consent, for two reasons: (1) In most cases, you should have obtained the informed written consent long before the client appears before the court, and (2) Putting the consent on the record in open court obviously waives the attorney-client privilege which would otherwise have applied.

Rule 1.0.1 defines an informed consent as a person’s agreement to a proposed course of conduct after the lawyer has communicated and explained (i) the relevant circumstances and (ii) the material risks, including any actual and reasonably foreseeable adverse consequences of the proposed course of conduct.

As stated in Comment 4 to Rule 1.0.1, the communication necessary to obtain informed written consent will vary according to the circumstances giving rise to the need to obtain consent. At a minimum, the consent must include an explanation of the facts and basis giving rise to the conflict of interest; the consent should tell the client what the problem is and explain, in terms the client can reasonably understand, how the problem might affect the client or the attorney’s representation. Under California law, an informed written consent requires a finding that (1) the attorney discussed the potential drawbacks of the subject representation with the client; (2) the client has been made aware of the dangers and possible consequences of the representation (and is actually able to understand them); (3) the client knows of the client’s right to conflict-free representation (i.e., to hire a different attorney); and (4) the client voluntarily wishes to waive that right. [1] [People v. Baylist (2006) 139 Cal.App.4th 1054, 1068. See also Los Angeles County Bar Ass’n Form.Opn. 471 (1992) (construing the former rule).] A couple boilerplate-type sentences in a retainer agreement would clearly not be adequate. The judge or arbitrator may even ask to see the client’s written consent, and may even question the client, to determine whether the consent is sufficiently informed. [Tuft, Peck & Mohr, Cal. Prac. Guide: Professional Responsibility (The Rutter Group 2021), p. 8-97, & 8:376.]

Comment 3 to rule 3.7 provides that, A[n]otwithstanding 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. Disqualification is likely where the attorney testifies regarding a key issue on which there is conflicting evidence. [See, Lyle v. Superior Court (1981) 122 Cal.App.3d 470, 482 (decided under prior rule) and Doe at 582.] However, a mere appearance of impropriety would not be sufficient grounds to disqualify an advocate-witness. [Doe at 581, citing In re Jasmine S. (2007) 163 Cal.App.4th 835, 843.]

Therefore, if you are a key witness in a case, you should not kid yourself into thinking you can get around the conflict simply by obtaining informed written consent from your client. Even if your client requests you to represent the client in the litigation, it is your professional responsibility to consider the law, including the Rules of Professional Responsibility, and decide accordingly. Consider the disastrous consequences for both you and your client of getting all the way to trial, only to have the judge disqualify you. Inability to enforce your retainer agreement or collect fees [see, Sheppard, Mullin, Richter & Hampton, LLP v. J-M Mfg. Co., Inc. (2018) 6 Cal.5th 58, 88-89], disgorgement of fees received, monetary sanctions [see, Terrebonne, Ltd. of Calif. v. Murray (ED CA 1998) 1 F.Supp.2d 1050, 1067-1077], civil liability, reversal of a civil judgment, reversal of a criminal conviction, and State Bar discipline are just a few of the possible terrifying consequences.

[1] For example, attorneys are often required to testify (under oath) in non-adversarial probate proceedings.
[2]Given the amount of detail which is required for a consent to be informed, it is clear why doing it on the record in open court is the less desirable approach.

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ESKRIDGE LAW may be contacted by phone (310/303-3951), by fax (310/303-3952) or by email (geskridge@eskridgelaw.net.) Please also visit our website at www.eskridgelaw.net.

This article is based on the law as of the date posted at the top of the article. This article does not constitute the provision of legal advice, and does not by itself create an attorney-client relationship with Eskridge Law.