Lawyers in the Same Firm

Lawyers in the Same Firm

Rule 3.7(a) restrains one person: the lawyer who would both argue the case at trial and take the stand. Even that lawyer keeps the advocate's role when an exception applies, the first being that the testimony relates to an uncontested issue.¹ The harder question arises when that lawyer has colleagues. May a partner or associate try the case while the witness-lawyer only testifies? Rule 3.7(b) answers yes, with one reservation: the colleague may act as advocate unless Rule 1.7 or Rule 1.9 precludes it. The default and the reservation are the two halves of this unit.

No Vicarious Disqualification

Rule 3.7(b) lets a lawyer act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness, unless Rule 1.7 or Rule 1.9 precludes it.² The two subdivisions address different lawyers. Subdivision (a) addresses the one who would both argue and testify. Subdivision (b) addresses everyone else in the firm, and for them the default runs the other way. The witness-lawyer's disqualification is personal and is not extended to associated lawyers. Attributing one lawyer's disqualification to every colleague would be vicarious disqualification, also called imputation, and subdivision (b) rejects it.³

The default follows from the harm that subdivision (a) targets: one lawyer standing in two roles before the same factfinder, as partisan advocate and as sworn witness. When one firm lawyer testifies and another argues, the roles sit in different people. The factfinder hears testimony from someone who has taken the oath and faced cross-examination, and argument from someone who has not, so each statement carries its own label. A firm-wide bar would add no protection against that confusion. It would strip the client of its trial team whenever any lawyer at the firm became a likely witness.

Ruiz needs no exception from subdivision (a), because she is not the lawyer whose testimony is in question. The exceptions for uncontested issues, for the nature and value of legal services, and for substantial hardship matter only to Dunmore.

Two errors follow from blurring the subdivisions. One treats (a) as a bar on the whole firm and overlooks that (b) leaves colleagues free to try the case. The other treats (b) as freeing the witness-lawyer and overlooks that the lawyer who would both testify and argue remains subject to (a). Neither subdivision settles the colleague's position alone, because the closing clause of (b) sends the question to the conflict rules.

Conflict Rule Limits

The colleague's freedom ends where Rules 1.7 and 1.9 begin, and the last clause of Rule 3.7(b) says so: the colleague may act as advocate unless precluded by one of them.⁵ The two sets of rules ask different questions. Rule 3.7 asks whether one person will speak in two roles, and giving the roles to two lawyers answers that question. Rules 1.7 and 1.9 ask whether the firm's loyalty to a current client, or its duty to a former one, has been compromised, and dividing the roles at trial does nothing to settle that. A firm can solve the role problem and still have a loyalty problem, so an answer that stops at the observation that Rule 3.7 imputes nothing to colleagues is incomplete.

Consider the current client first. A client hires a firm partly so that its lawyers stand between the client and everyone else; Rule 4.2 enforces that arrangement by forbidding a lawyer to communicate about the matter with anyone the lawyer knows to be represented, unless that person's lawyer consents.⁶ Testimony from one of those lawyers can reverse the arrangement. The client then suffers the effect of harmful, or even contradictory, testimony given by its own lawyer, or by a lawyer in the same firm, which is nearly the same thing.⁷ So the disqualification under Rule 3.7 stays with the individual, but the conflict that such testimony creates does not stay with the witness. The partner who would try the case, for example, must argue against a colleague's sworn account, and the witness-lawyer has a personal stake in being believed. The firm may continue only if the client gives informed consent.

The far more common case involves a firm lawyer who witnessed a signing and will confirm what the client says happened, or whose testimony is neutral on every contested point. That testimony threatens neither the current client nor a former one. No conflict of the kind just described arises, and the default in Rule 3.7(b) controls: the colleague tries the case.⁸

The reference to Rule 1.9 covers a separate problem. The advocate-witness rule applies only to current counsel for a client, so a former client cannot invoke it. If a lawyer's anticipated testimony is likely to damage a former client, and the matter is the same as or substantially related to the earlier representation, or the testimony would disclose information confidential to that former client, the lawyer is disqualified under the successive-conflict standard.⁹ Because Rule 3.7(b) names Rule 1.9 as a limit on the colleague too, the default does not carry the trial lawyer past that standard.

Informed consent can resolve the current-client version of the problem. If the client wants to keep the firm despite damaging testimony from one of its lawyers, and hiring other available and qualified counsel would not substantially reduce the harm to the client's case, the client may give informed consent to the continued representation.¹⁰ That condition does real work. When different counsel could avoid the damage, keeping the firm costs the client something a change of lawyers would save, and the client's agreement becomes hard to defend. The consent must also meet the general conflict rules on when consent is permitted, what disclosures the client must receive, and how the consent is confirmed.¹¹ Consent answers the firm's conflict and does not enlarge Rule 3.7(a), so the witness-lawyer who would both testify and argue stays out of the advocate's role unless one of the three exceptions applies.