Legal Definitions - attorney-witness rule

The attorney-witness rule (also known as the lawyer-witness rule) is a fundamental principle in legal ethics that generally prohibits a lawyer from acting as both an advocate (representing a client in court) and a witness (providing testimony about disputed facts) in the same legal proceeding. The purpose of this rule is to prevent conflicts of interest, maintain the integrity of the legal profession, and avoid confusing the jury or court about the lawyer's role.

If a lawyer is likely to be a necessary witness concerning a contested issue, they typically must withdraw from representing the client in that matter. There are limited exceptions, such as when the testimony relates to an uncontested issue, the nature and value of legal services rendered in the case, or if disqualification would cause substantial hardship to the client.

• Example 1: Witnessing an Incident

  Imagine a lawyer, Ms. Chen, is representing a client, Mr. Davis, who is suing a construction company for negligence after a scaffolding collapse. Unbeknownst to her when she took the case, Ms. Chen was walking her dog nearby on the day of the collapse and personally observed the scaffolding being erected in a visibly unsafe manner just hours before the incident. When the defense team learns of her presence and potential eyewitness account, they list her as a potential witness. Under the attorney-witness rule, Ms. Chen would likely have to withdraw as Mr. Davis's attorney because her testimony about the unsafe construction practices would be crucial to the case and would place her in the conflicting roles of both advocate and witness for her client.

• Example 2: Drafting a Contract with Ambiguity

  Mr. Rodriguez is a business attorney who drafted a complex partnership agreement for two clients, Sarah and Tom. Years later, a dispute arises between Sarah and Tom regarding a specific clause in the agreement that appears ambiguous. Sarah's new attorney wants to call Mr. Rodriguez to testify about the original intent behind that clause during the drafting process, as he was privy to the discussions and negotiations. Because Mr. Rodriguez's testimony would be about a contested factual issue (the intent of the clause), he would be prevented by the attorney-witness rule from representing either Sarah or Tom in the dispute, even if he had previously represented both. He would likely be called as a witness by one of the parties, requiring him to step down from any advocacy role.

• Example 3: Lawyer as a Fact Witness in a Property Dispute

  A lawyer, Mr. Kim, represents a homeowner, Ms. Lee, in a boundary dispute with her neighbor. Before the lawsuit began, Mr. Kim had several informal conversations with the neighbor in an attempt to resolve the issue, during which the neighbor made certain admissions about the property line. Now, during litigation, Ms. Lee's case relies heavily on proving these admissions were made. If Mr. Kim is the only person who heard these crucial admissions, he would become a necessary witness to testify about what the neighbor said. In this scenario, the attorney-witness rule would require Mr. Kim to withdraw from representing Ms. Lee, as his testimony about the neighbor's statements would be a disputed fact central to the case, making him both an advocate and a key witness.