Committee Reports

Formal Opinion 1988-9

November 28, 1988

ACTION: Formal Opinion


The Committee has had occasion twice during the past year to address the propriety of a lawyer representing a client on the appeal of a case in which the lawyer testified on behalf of the client at trial. Different considerations led the Committee to find in one instance that the appellate representation was ethically proper and in the other instance that it was not. In this opinion, the Committee examines the controlling principles underlying those two determinations as a predicate to formulating a rule of general application that will provide guidance to lawyers who face the question in the future.

DR 5-101(B) requires a lawyer to refuse employment in “contemplated or pending litigation when he knows or it is obvious that he ought to be called as a witness” on behalf of his client. DR 5-102(A) obligates a lawyer to withdraw from the conduct of a trial if he “learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client.” There are four exceptions enumerated in DR 5-101(B). n1 If any of these exceptions is applicable, so that a lawyer/witness properly could have continued as trial counsel, then there is no readily apparent basis for concluding that the same exception is not equally applicable to permit the lawyer to continue the representation on appeal. For purposes of this opinion, the Committee assumes that none of the exceptions is applicable.

n1 “1. If the testimony will relate solely to an uncontested matter. 2. If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony. 3. If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or his firm to the client. 4. As to any matter, if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case.”

Consistent with the dual prohibitions contained in DR 5-101(B) and DR 5-102(A), there is no meaningful distinction between situations in which a lawyer/witness is considering acceptance of an appellate representation as opposed to withdrawal from an ongoing appellate representation (although it is difficult to conceive of a circumstance in which withdrawal would not have been required at trial but would be required for the first time on the appeal).

Read literally, the language of DR 5-101 and DR 5-102 applies only to trial proceedings. n2 Problems inherent in the dual role of advocate and witness, however, are not confined to trial. EC 5-10 states:

Problems incident to the lawyer-witness relationship arise at different stages; they relate either to whether a lawyer should accept employment or should withdraw from employment. Regardless of when the problem arises, his decision is to be governed by the same basic considerations.

n2 DR 5-102(A) explicitly refers to “the conduct of the trial” and “representation in the trial.” Although DR 5-101(B) does not employ these phrases, it clearly is addressed to trial proceedings inasmuch as it refers to a lawyer being “called as a witness” and to matters as to which the lawyer “may testify.”

See also General Mill Supply Co. v. SCA Services, Inc., 697 F.2d 704, 715-16 (6th Cir. 1982) (rejecting the notion that references to the word “trial” in the disciplinary rules under Canon 5 should be read literally). It would be artificial to confine operation of the lawyer-as-witness rule to representation at trial merely because the rule speaks to the most common context in which the problem arises.

Not every representation on appeal by a lawyer who appeared as a witness at trial is forbidden. General guidance is provided by the Ethical Considerations under Canon 5. EC 5-2 states:

A lawyer should not accept proffered employment if his personal interests or desires will, or there is a reasonable probability that they will, affect adversely the advice to be given or services to be rendered the prospective client. After accepting employment, a lawyer carefully should refrain from acquiring a property right or assuming a position that would tend to make his judgment less protective of the interests of his client.

EC 5-9 addresses the specific rationale for prohibiting a lawyer from acting as both witness and advocate.

An advocate who becomes a witness is in the unseemly and ineffective position of arguing his own credibility. The roles of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the cause of another, while that of a witness is to state facts objectively (emphasis supplied).

See ABA Formal Opinion 339 (Jan. 31, 1975); MacArthur v. Bank of New York, 524 F. Supp. 1205, 1208 (S.D.N.Y. 1981). It is also possible that the jury’s evaluation of a witness’ testimony may be influenced by the fact that the witness is playing another role, namely, that of advocate, at the trial. See International Electronics Corp. v. Flanzer, 527 F.2d 1288, 1294 (2d Cir. 1975).

Applying these principles to the appellate process, the propriety of representation by a lawyer/witness turns on the relationship between the lawyer’s trial testimony and the issues that ought to be briefed and argued on appeal. This question cannot be answered simply by examining whether the lawyer’s trial testimony is consistent with the position that the lawyer proposes to advocate for his client on appeal. It will be difficult, if not impossible, for a lawyer to ignore his personal interest in a case if his trial testimony is to be an issue on the appeal. That personal interest may be reflected in many ways on an appeal. The preparation of a statement of facts, the selection and articulation of issues to be briefed, the relative prominence of the treatment of different issues and the manner in which a witness’ testimony is presented in support of legal arguments are all integral elements of appellate representation. When a lawyer has been a witness at trial, there is a danger that he will not possess the objectivity regarding his own testimony necessary to the exercise of independent professional judgment on behalf of his client on subjects such as those enumerated above.

Consequently, the Committee concludes that if a lawyer knows or it is obvious that the subject matter of his trial testimony will or ought to be an issue on appeal, then the lawyer is precluded from appearing as appellate counsel. Application of this prophylactic rule may be illustrated by the two inquiries considered by the Committee during the past year and the distinctions between them that led to opposite results.

The first inquiry was from a lawyer who sought to brief and argue an appeal from a criminal conviction for conspiracy. The lawyer had testified at trial on behalf of the defendant concerning a letter the lawyer drafted for the defendant to a group of investors allegedly defrauded by the defendant. The lawyer testified that the letter was sent in connection with a pending civil action to inform the investors of the defendant’s conduct and to seek their support for that conduct. The Government identified the letter as a conspiratorial act designed to mislead investors into not asserting their rights against the defendant. Whether the letter constituted an overt act in furtherance of the alleged conspiracy, and consequently whether the defendant intended to defraud the investors by sending the letter, were to be issues on appeal. The lawyer’s testimony was highly relevant to these issues, and therefore the Committee concluded that he could not ethically appear as counsel on the appeal.

While the lawyer might believe that he could exercise independent professional judgment in preparing the appeal, the possibility remained that he would be tempted to vindicate his own standing and reputation following the jury’s apparent rejection of his testimony at trial. In particular, the lawyer might adopt a strategy on appeal that focused on rehabilitating his trial testimony rather than on issues that would best serve the interests of his client. The rule adopted by the Committee eliminates the need to resolve these difficult issues of personal motivation, holding instead that the mere connection between the lawyer’s trial testimony and the issues on appeal is sufficient to mandate disqualification.

The second inquiry considered by the Committee was from a lawyer who sought to brief and argue an appeal in which the question was whether denial of specific performance constituted reversible error. The attorney seeking to handle the appeal had testified at trial, not as to the nature of relief that would be appropriate, but as to the contractual obligation itself, specifically whether in a telephone conversation the lawyer had agreed on behalf of his client to waive a purchase option. The trial judge ruled in favor of the client, crediting the testimony of the lawyer and rejecting the defense of waiver. The waiver issue was not to be raised on the contemplated appeal and, because the subject of the lawyer’s testimony could be isolated from issues that were being raised on appeal, it would be possible to disregard his testimony in the brief. Under these circumstances, the Committee found that there were no ethical impediments to the lawyer representing the client on appeal. The first exception enumerated in DR 5-101(B) – authorizing a lawyer to act as trial counsel even though he will be a witness “if the testimony will relate solely to an uncontested matter” – might be applicable given that the waiver issue was not to be raised on appeal. There was, however, a more fundamental basis for the Committee’s decision, one that did not entail the difficulty of characterizing the waiver issue as “uncontested” when indeed it had been contested at trial: The lawyer’s trial testimony did not pertain to any issue that would be argued on appeal.

If an attorney may ethically act as appellate counsel under the above standard, he may handle all aspects of that representation, including the argument of the case. On the other hand, if the attorney may not ethically accept such employment, he is forbidden not only from arguing the case but also from participating in preparation of the brief.