Enforcement and Evidence Law

Enforcement and Evidence Law

Rule 3.7(a) speaks to the lawyer. It forbids a lawyer who is likely to be a necessary witness to act as advocate at the trial, and it lets the lawyer keep that role in listed situations, the first being testimony on an uncontested issue.¹ That text governs the lawyer's choice of role. It does not tell a judge what to do when a lawyer's name appears on a witness list, and the judge faces three separate questions, each answered by a different body of law:

• Will the testimony come in? Evidence law answers, and the trial court's discretion does most of the work.
• What happens when the lawyer should not hold both roles? The court disqualifies counsel, and a problem that surfaces during trial can end in a mistrial.
• Which text governs? The jurisdiction's version of the rule, which may differ from the Model Rule.

A lawyer can be right on one question and wrong on another. A court may refuse testimony from a lawyer who is entitled to stay on as advocate, and a state's wording may let the lawyer keep the advocate's seat while the judge still limits what the lawyer says from the witness stand. A student who runs all three questions through the ethics rule alone will misread at least one of them. The first question comes first.

Competence and Discretion

Rule 3.7 decides which role a lawyer may occupy, and evidence law decides whether the factfinder hears the lawyer's testimony. The ethics rules do not govern admissibility, even though a lawyer's testimony can sometimes violate them.² One case can therefore produce two rulings, one on whether the lawyer may remain as advocate and one on whether the lawyer may take the stand. The answer to one does not settle the other.

At common law and under Federal Rule of Evidence 601, a lawyer for a party is not per se incompetent to testify.³ Federal courts treat the advocate-witness rule the same way: it does not render an advocate incompetent as a witness, but merely vests the trial court with discretion.⁴ Two errors follow when the bodies of law are confused. One treats a violation of Rule 3.7 as though it made the testimony inadmissible. The other treats a lawyer's right to stay on as advocate under an exception as a right to testify.

Competence is only where evidence law starts. The court has wide discretion to bar testimony by a lawyer who is presently in the case, especially when the lawyer offers it in the client's favor.⁵ Judges routinely use that discretion in two situations. Where other sources of evidence about the fact of consequence are available, the lawyer's testimony adds little, and the dual role buys nothing. Where the need for the lawyer's testimony could easily have been foreseen and avoided, the court declines to reward the choice that created the need.⁶ The discretion works the same way whether the client's side or the opposition calls the lawyer.⁷

The discretion survives an offer to withdraw. Where no other witness is available and the lawyer is willing to step aside, judges usually still preclude the testimony, because letting the lawyer withdraw and substituting new counsel will delay, if not disrupt, the proceeding.⁸ Withdrawal is therefore no free solution.

Federal Rule of Evidence 403 supplies an evidentiary ground for the same result. It authorizes the trial judge to exclude logically relevant evidence when its probative value is substantially outweighed by dangers such as “confusing the issues.”⁹ A lawyer who testifies and then keeps trying the case creates that danger, because the jury might confuse the lawyer's testimony as a witness with the lawyer's arguments as an advocate.¹⁰ The courts that routinely bar such testimony give the same reason, so the ethics rule and Rule 403 often reach similar results. Rule 403 frames the question as a weighing, however. Testimony the trial needs weighs heavily, and testimony another witness can duplicate leaves the confusion risk with nothing to offset it.

The courts of appeals describe the result as a strong default with a narrow exit. The court in Ewing recalled its earlier conclusion that allowing an advocate to testify “is a situation to be avoided if possible,” but one that “will be permitted in extraordinary circumstances and for compelling reasons, usually where the evidence is not otherwise available.” The Fourth Circuit in United States v. Fogel said that courts “have generally frowned on” counsel testifying, but when “the testimony is important and no other witness would be able to supply it, then such testimony may be allowed.”¹¹

Ewing's appeal shows the inquiry on real facts. He argued that the district court erred in refusing to let his assistant federal public defender testify about allegations that the Government tampered with the evidence against him. Two composition notebooks seized from his dining room, he said, had no name on them when the police took them, yet bore his name when they were introduced at trial as evidence of drug trafficking. His lawyer was prepared to testify that six weeks before trial, when she and a paralegal from her office examined the evidence at the Alton police station, his name appeared on neither notebook.¹² A judge using the discretion described above would ask two questions about that offer. Is there another source for the same observation? The paralegal examined the notebooks too. Could the need for the lawyer's testimony have been avoided? Those are the facts on which judges most often rest the exercise of discretion.¹³

The lawyer's knowledge is firsthand in the elevator, as it was at the police station. What differs is whether another source exists and whether the need was avoidable.¹⁴

The third step usually decides the question, because the availability of another source and the avoidability of the need are the facts judges most often cite when they bar the testimony.¹⁵

Disqualification and Mistrial

The advocate-witness rule does not enforce itself. It reaches a court as a question of disqualification, and the trial court decides it. Kennedy v. Eldridge and United States v. Givens show how that question is resolved when it is confronted before trial and when it is confronted after trial has begun.

Kennedy arose from a roiling support and custody dispute over an infant. The trial court disqualified the child's paternal grandfather from representing his son, the father, against the mother. The appellate court asked whether the trial court had acted within its discretion and held that it had.¹⁷ Several grounds together supported the order: a plethora of family entanglements, potential misuse of confidential information, the near-certain prospect that counsel would have to testify, and the preservation of the integrity of the judicial system.¹⁸ The court gave the last ground weight of its own, finding that the interconnected family entanglements produced “a strong appearance of impropriety” and undermined the integrity of the judicial system.¹⁹

The advocate-witness strand of the order rests on a long line of California authority. The state supreme court long ago embraced the prohibition, reasoning that an attorney who tries to be both advocate and witness impairs credibility as a witness and diminishes effectiveness as an advocate. More recently it told a lawyer who is likely to testify as a material witness to “resolve any doubt in favor of preserving the integrity of his testimony and against his continued participation as trial counsel.”²⁰

The trial judge in Kennedy did not have to predict the confusion, because an earlier hearing had already produced it. Judge Mize observed that the lawyer had told the court he does not smoke pot and “hates” cigarette smoke, and asked whether at that point he was arguing as an attorney, testifying as a witness, or making an offer of proof for his client or for himself as a witness. The judge concluded that the conflict “is not just prospective or likely: it already has been manifested in this case in a preliminary law and motion matter well before” a full custody trial.²¹ A court ruling on a pretrial motion may rely on what it has already watched, and the price of the ruling at that stage is a change of lawyers before the trial has begun.

The price rises when the problem is confronted later. In Givens, a criminal case, the district court disqualified defense counsel, Mr. Pleban. The Eighth Circuit said the district court conceivably could have found hardship, which would have let Pleban testify and keep representing Givens, but that the court chose the better path in disqualifying him. It also noted that no one objected.²² The dispute then turned on whether a mistrial was justified.

Retrial after a mistrial has long been permitted where, taking all the circumstances into consideration, there is a “manifest necessity” for the mistrial or the ends of public justice would otherwise be defeated. The necessity, however, must be of a “high degree.”²³ The standard is flexible, and it seeks fairness to the defendant, the government, and the public interest alike.²⁴

Concern that jurors will confuse a lawyer's two roles has persuaded other courts to approve mistrials, and the Second Circuit's decision in United States v. Arrington is an example. The Eighth Circuit's analysis in Givens cut the other way. A trial court's speculation about the effects of a change in role is not entitled to any particular deference, the court said, and it did not think those effects would have been substantial: “Practical considerations and speculation ... cannot serve as a basis for manifest necessity.” It thought prejudice particularly unlikely because Pleban's testimony would have been relevant only to a collateral issue, the credibility of one government witness.²⁵

Set side by side, the two cases show why timing matters. In Kennedy the problem surfaced in preliminary proceedings, well before the custody trial, and the remedy was a change of counsel. In Givens it reached a mistrial and a dispute over whether the defendant could be retried. The standards differ accordingly. A disqualification order is reviewed for whether the trial court stayed within its discretion, while a mistrial that forces a retrial requires manifest necessity of a high degree.

Not every conduct rule that bears on a prosecutor raises an advocate-witness problem. Rule 3.8(b) and (c), for example, requires a prosecutor to take reasonable steps to facilitate an accused's access to counsel and prohibits procuring a waiver of important pretrial rights from an unrepresented accused. Its purpose is to prevent overreaching by trained advocates who carry the government's authority and to prevent interference with an actual or imminent attorney-client relationship.²⁶ That harm differs from the blurring of advocate and witness, and one rule should not be used to answer a question about the other.

State Variations

Model Rule 3.7(a) lists three exceptions to the advocate-witness prohibition: testimony on an uncontested issue,²⁸ testimony on the nature and value of legal services rendered in the case,²⁹ and substantial hardship to the client, which Givens treated as available to a district court that wished to let a lawyer testify and keep representing the client.³⁰ That list is the default for a question that names no jurisdiction. A state's version can differ, and the two departures below differ from each other: California adds client consent, and the version quoted in Ewing changes the trigger and adds an exception for formalities.

The California rule quoted in Kennedy, former rule 5-210, barred a lawyer from acting as an advocate “before a jury which will hear testimony from the member” unless the testimony related to an uncontested matter, related to the nature and value of legal services rendered in the case, or the lawyer had “the informed, written consent of the client.”³¹ Two features set that rule apart from the Model Rule: it spoke of advocacy before a jury, and its list included client consent. California later revised its rule, effective November 1, 2018. The revised rule provides that a lawyer-advocate may testify before a jury if the lawyer “has the informed, written consent of the client,” which lifts even the personal disqualification.³²

A comparison bears on the confusion rationale for the prohibition. Many cases allow an experienced police officer to describe an accused's conduct and to give the opinion that it fits the modus operandi for a particular type of crime, and the officer gives both in the same direct examination. That testimony presents the confusion risk to a greater degree than a lawyer's does, because a lawyer whose testimony is restricted to facts is separated from the opinionated summation by a substantial time gap.³³ Confusion does not exhaust the objection, however. Kennedy quotes authority calling the roles of advocate and witness “entirely irreconcilable,” because one requires the lawyer to be partisan and the other to be factual, so that the pairing “robs the trial of that appearance of fairness which should characterize every court hearing.”³⁴ If the harm reaches the appearance of fairness at trial, a client's consent answers only part of it, and that is one reason not to assume that consent cures the dual role.

The Ewing opinion quotes a different variant. As quoted, it forbids a lawyer to accept or continue employment in contemplated or pending litigation if the lawyer knows or reasonably should know that the lawyer may be called as a witness on behalf of the client.³⁵ Against the Model Rule, the trigger shifts in three ways. It attaches to accepting or continuing employment rather than to acting as advocate at trial, it asks whether the lawyer may be called rather than whether the lawyer is likely to be a necessary witness, and it speaks of testimony on behalf of the client. Its exceptions are an uncontested matter; a matter of formality, where the lawyer reasonably believes that no substantial evidence will be offered in opposition; the nature and value of legal services rendered by the lawyer or the firm; and any other matter where refusing the employment would work substantial hardship on the client.³⁶ The formality exception has no counterpart in the Model Rule's list. Like the uncontested exception, it covers testimony no one is expected to dispute, but it turns on the lawyer's reasonable belief about the opposition and not on the opponent's actual position. A question that expects this version will supply its text.

A narrower rule does not always end the analysis. The California rule quoted in Kennedy spoke of advocacy before a jury,³⁷ yet the court relied on California authority holding that, especially where no California policy conflicts, the ABA Model Rules serve as a collateral source for guidance on proper professional conduct.³⁸ A lawyer cannot count on a narrow local rule to escape the Model Rule's reasoning.

Park and Mendez know the same facts and hold the same signed consent, and the outcome differs only because the governing text differs.³⁹ The usual exam error is to carry one jurisdiction's feature into another, for instance by treating a client's written consent as a general cure for the dual role. A question that supplies no jurisdiction is governed by the Model Rule, whose list contains no consent exception. A question that names a state or quotes a state's text is answered under that text.