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Disqualifying a Party’s Attorney Under the Attorney Witness Rule

RPC 3.7 Attorney Witness Rule DisqualifyIn this post I examine the attorney witness rule incorporated in New Jersey Rule of Professional Conduct (“RPC”) 3.7, and how the Rule can be used to disqualify a lawyer representing a party in litigation when the lawyer possesses factual knowledge of contested issues that go to the heart of the case.  Because courts generally are reluctant to disqualify a party’s choice of counsel, a motion brought pursuant to RPC 3.7 requires the moving party to bear the burden of proof by demonstrating that the attorney’s continued representation would violate the Rule. J.G. Ries & Sons, Inc. v. Spectraserv, Inc.,384 N.J. Super. 216 (App. Div. 2006).

RPC 3.7(a)  states:

A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:

(1)the testimony relates to an uncontested issue;
(2)the testimony relates to the nature and value of legal services rendered in the case;
(3)disqualification of the lawyer would work substantial hardship on the client.

R.P.C. 3.7 authorizes disqualification of the client’s attorney only where that attorney’s trial testimony is “necessary” and “likely.” A purpose of that limited remedy is to prevent unfairness to the opposing party.   See Michels, New Jersey Attorney Ethics, comment 31:4-1(a) on R.P.C. 3.7 (2012).  A mere representation of an intent to call the attorney as a witness at trial is not sufficient, in and of itself, to demonstrate such necessity and likelihood.  See, e.g., J.G. Ries & Sons, Inc. v. Spectraserv, Inc., 384 N.J. Super. 216, 230 (App. Div. 2006).  See also Main Events Prods. v. Lacy, 220 F.Supp.2d 353, 355 (D.N.J. 2002)(RPC 3.7(a) is a prohibition against an attorney-witness acting as an “advocate at trial.”).  For purposes of RPC 3.7, a witness is truly “necessary” if there are no documents or other witnesses that can be used to introduce the relevant evidence.

The purpose of RPC 3.7(a) is “to prevent a situation in which at trial a lawyer acts as an attorney and a witness, creating the danger that the factfinder (particularly if it is a jury) may confuse what is testimony and what is argument . . . .” Main Events Prods., 220 F.Supp.2d at 357. An attorney is “likely to be a necessary witness only where he has crucial information in his possession which may be divulged.” Garza v. McKelvey, No. 89-895, 1991 U.S. Dist. LEXIS 311, *6 (D.N.J. Jan. 2, 1991).  If the case may be “handled by any competent lawyer … it is appropriate for [the attorney-witness] to withdraw.” Advisory Committee on Professional Ethics, Opinion No. 630, 124 N.J.L.J. 906, 926 (quoting Advisory Committee on Professional Ethics Opinion No. 233, 95 N.J.L.J. 206 (1972)). Even when there is a question as to the materiality of the lawyer’s testimony to the client’s case, “doubts should be resolved in favor of the lawyer testifying and against his becoming or continuing as an advocate.” Advisory Committee on Professional Ethics, Opinion No. 233, 95 N.J.L.J. 206-207, (1972) (quoting ABA Model Code of Professional Responsibility EC 5-10).

Historically, New Jersey Courts have consistently held that RPC 3.7 begins to operate as soon as the attorney knows or believes that he will be a witness at trial. See In the Matter of Cadillac V8-6-4 Class Action, 93 N.J. 412 (1983) (construing New Jersey DR 5-101 and DR 5-102). The attorney-witness takes effect before an attorney decides to accept employment from a client. Once an attorney recognizes that he is “likely” to be a witness in litigation, he must choose whether he will proceed as advocate or witness; he may not choose both.  Id, at 440.  

Generally speaking, motions to disqualify are viewed with disfavor as disqualification is a remedy with broad implications.  See Kroungold v. Triester, 521 F.2d 763, 766 (3d Cir. 1975);Carlyle Towers Condo. Ass’n v. Crossland Sav., 944 F.Supp. 341, 345 (D.N.J. 1996); Spinello Cos. v. Metra Indus., No. 05-5075, 2006 U.S. Dist. LEXIS 41875 (D.N.J. June 22, 2006); Cavallaro v. Jamco Prop. Mgmt., 334 N.J. Super. 557, 572 (App. Div. 2000)(the disqualification of a client’s counsel is considered a harsh remedy that should only be granted sparingly). The party seeking disqualification bears the burden of showing that continued representation by the lawyer would violate the disciplinary rules.

In addition, the party seeking to disqualify an attorney must do more than simply make representations that a lawyer is a necessary witness for the attorney to be disqualified. J.G. Ries & Sons, Inc. v. Spectraserv, Inc., supra, 384 N.J. Super. at 230 (“Such a mere representation, however, does not satisfy the threshold requirements of RPC 3.7, which specifies a likelihood that a lawyer will be a necessary witness.”)  Indeed, the party seeking to disqualify must put forth evidence that establishes the likelihood that the attorney will be a necessary witness at trial and if it is unclear from the record as to whether or not the attorney’s testimony is necessary, the motion should be denied. See Host Marriott Corp. v. Fast Food Operators, Inc., 891 F. Supp. 1002, 1010 (D.N.J. 1995).

Resolution of a motion to disqualify requires the court to balance “the need to maintain the highest standards of the [legal] profession” against “a client’s right to freely choose his counsel.” Dewey v. R.J. Reynolds Tobacco Co., 109 N.J. 201, 205, (1988) (internal citation omitted). This balancing involves a “painstaking analysis of the facts and precise application of precedent.”  Reardon v. Marlayne, Inc., 83 N.J. 460, 469 (1980); Dewey, 109 N.J. at 205.  As the New Jersey Supreme Court remarked, “[i]f there is any doubt as to the propriety of an attorney’s representation of a client, such doubt must be resolved in favor of disqualification.”  Reardon, 83 N.J. at 471.

Admitted to NJ Bar in 1990, NY Bar in 1991. Former Judicial Law Clerk to Honorable Peter Ciolino, Assignment Judge, Superior Court of New Jersey, Bergen County. Member & Barrister: Daniel J. Moore Bankruptcy Inn of Court Member & Barrister: Morris Pashman Inn of Court Member: Bergen County Bar Association NJ Superlawyer - 2008, 2009, 2010, 2011, 2012, 2013 Nominated for inclusion in Best Lawyers of America Member: Litigation Counsel of America, Trial Lawyer Honorary Society
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