Ethics Opinion 228

Lawyer-Witness Participation in Pre-Trial Proceedings

Although precluded from acting as trial counsel, 在道德上可能成为审判中必要证人的澳博app可在审前事项和审判准备方面协助替代澳博app，并可在大多数审前程序中继续代表当事人.

Applicable Rules

• Rule 3.7(a) (Lawyer As Witness)
• Rule 1.7(b) (Conflict of Interest)
• Rule 1.4(b) (Communication)

Inquiry

The inquirer has represented a client (the association) for several years. 该协会目前正在参与一项诉讼，在该诉讼中，对方澳博app根据对方传唤询问者作为证人的意图，成功地取消了询问者的代理资格. The association retained substitute trial counsel whom inquirer has assisted in preparing for trial.¹

Opposing counsel objects to the assistance that inquirer has been providing to substitute counsel. Opposing counsel contends that this assistance violates Rule 3.7(a). Inquirer believes the court's disqualification of him as trial counsel does not affect his ability to assist his client in preparation for trial; he is limited only in his ability to represent the association at trial.

Discussion

Rule 3.7(a) provides that "A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness. . . ." As Comment [2] explains, 辩护人-证人规则旨在防止澳博app在审判中扮演双重角色可能导致的偏见:“证人必须根据个人知识作证, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate-witness should be taken as proof or an analysis of the proof."

Beyond the confusion that this combination of roles might create, the rule is justified on at least three other bases: (1) it is necessary to prevent the possibility that, in addressing the jury, the lawyer will appear to vouch for his own credibility; (2) it will prevent the difficult situation that occurs when an opposing counsel must cross-examine a lawyer-adversary and seek to impeach his credibility; and (3) the rule also will prevent the implication that the testifying lawyer is distorting the truth for his/her client's benefit. Culebras Enterprises Corp. v. Rivera-Rios, 846 F.2d 94, 99 (1st Cir. 1988), citing Bottaro v. Hatton Associates, 680 F.2d 895, 897 (2d Cir. 1982); International Electronics v. Flanzer, 527 F.2d 1288, 1294 (2d Cir. 1975); MacArthur v. Bank of New York, 524 F. Supp. 1205, 1208 (S.D.N.Y. 1981). See also A.B.A., Annotated Model Rules of Professional Conduct, at 387-89 (2d ed. 1992).

All of the reasons underlying the rule relate to concerns that might arise only at trial. Indeed, Rule 3.7(a)'s reach is limited to the trial stage, i.e., the lawyer is prohibited from acting only as "advocate at a trial" when he or she is likely to be a necessary witness. Given the Rule's express limitation and the trial-stage purposes it is intended to serve, 我们的结论是，可能成为审判中必要证人的澳博app可以在大多数审前事项中代表客户. This includes, but is not limited to, taking witness depositions, pre-trial discovery and argument of most pre-trial motions, and also assisting in trial preparation.² It follows a fortiori that the lawyer-witness may assist substitute counsel in similar matters.

美国澳博app协会道德与职业责任委员会在89-1529号非正式意见中审议了同样的问题(1989年10月20日). In reaching the same conclusion under substantially the same rule,³  the ABA committee found several reasons for permitting the lawyer-witness to represent the client advocate during the pre-trial stage: (1) the case may be settled in advance of trial so that the lawyer is not needed to testify; (2) the lawyer's testimony may be replaced with other evidence at trial; (3) the client may choose to forego the lawyer's testimony rather than lose the lawyer's services at trial; (4) there is little likelihood of prejudice to the client or the justice system since the Rules now permit the lawyer's partner to act as trial counsel; and (5) the lawyer-witness may have the most knowledge about the case, and it would be unfair to the client not to permit that lawyer to participate in pre-trial proceedings.

We agree, and add that the Rules should not be interpreted to interfere unnecessarily with a client's choice of counsel. Where none of the Rule 3.7's purposes are served by pre-trial disqualification, 取消辩护人证人的资格只会使当事人失去不仅最了解案件，而且与当事人最有可能建立关系的澳博app或公司. See Norell, Inc. v. Federated Department Stores, Inc., 450 F. Supp. 127, 130 (S.D.N.Y. 1978).

考虑辩护人-证人参与审前事项问题的法院一般都允许这种参与. In Culebras Enterprises, supra at 99, the First Circuit squarely was asked and squarely refused to construe Rule 3.广泛地说:“问题是禁止在审判中担任辩护人的规定是否应被广泛地理解为禁止在审判前提供与案件有关的庭外服务. We think not."

Even under the former and arguably broader rule, DR 5-102(B), Courts permitted advocate-witnesses⁴  to participate in pre-trial proceedings though disqualified or likely to be disqualified from representation at trial. See Moyer v. 1330 Nineteenth Street Corp., 597 F. Supp. 14, 17 (D.D.C. 1984); Brotherhood Railway Carmen v. Delpro Co., 549 F. Supp. 780, 790 (D. Del. 1982); MacArthur v. Bank of New York, supra at 1211 ("The disqualified firm may consult with defendant's substitute counsel and assist in preparing for trial."); Norell, Inc., supra. But see Munk v. Goldane National Corp., 697 F. Supp. 784, 788 (S.D.N.Y. 1988) (interests of justice best served if advocate-witness disqualified from pre-trial proceedings); General Mill Supply Co. v. SCA Services, 697 F.2d 704, 716 (6th Cir. 1982年)(“在这种情况下，我们可以预见，由于未能执行[DR 5-102]，最严重的危害将发生在审前阶段. . . .")

Although noting that Rule 3.7 applies "specifically to service 'as advocate at a trial,’”尽管如此，美国澳博app协会道德委员会认为，“禁令背后的政策适用于澳博app(证人)在审前程序中为自己的真实性辩护的任何情况”. Inf. Op. 89-1529, supra note 1. The ABA thus felt that a lawyer should not argue, without the client's consent, 一种审前动议，其中澳博app的证词既是有争议的，又是对审判前决定的有争议的事项至关重要的. In a single-sentence footnote, the Court in Brotherhood of Railway Carmen, supra note 20, 还禁止辩护人证人参加要求他就争议事项作证的审前动议. Neither opinion cited an ethics rule or previous judicial opinion.

而在某些情况下，澳博app证人最好在审前动议中拒绝代表客户对自己的证词进行论证, D.C. Rule 3.7(a), by its terms, extends only to prohibit advocacy at a trial. Although it is identical to ABA Model Rule 3.7(a), we decline to extend the D.C. rule beyond its terms. Had the District of Columbia Court of Appeals intended the rule to apply beyond prohibition of courtroom representation, the rule could have been so written⁵  However, 在任何案件中，澳博app代表客户的专业判断可能因其作为证人的角色而受到不利影响, the lawyer may not represent the client in pre-trial motions without the client's consent. Rule 1.7(b)(4). 当他/她自己的证词在审前动议中受到质疑时，澳博app证人应仔细考虑是否存在这种情况.

提出的另一个代表性问题涉及在澳博app自己的审前证词中代表委托人的澳博app证人. While Rule 3.7 does not prohibit such representation, other ethical issues may be raised when a lawyer assumes both roles at his/her own deposition. 这些问题中最主要的是澳博app证人是否能够勤勉地保护他/她的客户的秘密, as required by Rule 1.6. The ABA Committee, in cautioning against this practice, thought the "better practice is that another lawyer serve as counsel to the client at that deposition."

Once it becomes apparent that the lawyer likely will be a necessary witness at trial, it follows from Rule 1.4(b)⁶  辩护人证人必须将这一事态发展通知其委托人，并征得委托人的知情同意继续进行审前代理. The client should understand the effect that withdrawal prior to trial will have, including the financial impact, if any, of retaining new counsel and the point at which new counsel should be retained. As with any withdrawal from employment, the advocate-witness is bound by the requirements of Rule 1.16(d).

Inquiry No. 91-10-38
Adopted: May 19, 1992

1. The events in this inquiry occurred before the adoption of the Rules of Professional Conduct. Under the former Code of Professional Responsibility, the inquirer’s disqualification under DR 5-102(a) was imputed to his law firm. Rule 3.7 removes this imputed disqualification. Assuming that the applicable court order would permit, the change effected by Rule 3.7 would allow previously-disqualified law firms to resume representations in which a firm member is a necessary witness.
2. This is subject to any applicable rules of court, including rules regarding witnesses.
3. D.C. and Model Rule 3.7(a) are identical; subsection (b) of each rule is substantially the same.
4. DR-5-102(A) provided that a lawyer “shall withdraw from the conduct of the trial” if the lawyer learns or it is obvious that the lawyer ought to be called as a witness; the lawyer’s firm “shall not continue representation in the trial.”
5. For example, in Rule 3.4 (Fairness to Opposing Party and Counsel), subsections (d) and (e) clearly distinguish between pretrial and trial obligations.
6. Rule 1.第4(b)条规定:“澳博app应在合理必要的范围内解释事项，以允许客户就代理作出知情决定.”