Following is the 39th post in a series from Parker Law Group about recent changes to the California Bar Association (CBA)’s Rules of Professional Conduct (RPC). This rule is found in Chapter 3 – “Advocate,” focusing on the regulations surrounding a lawyer serving as a witness during a trial. The Rule of Professional Conduct, as revised, is as follows:
Rule 3.7 Lawyer as Witness
(a) A lawyer shall not act as an advocate in a trial in which the lawyer is likely to be a witness unless:
(1) the lawyer’s testimony relates to an uncontested issue or matter;
(2) the lawyer’s testimony relates to the nature and value of legal services rendered in the case; or
(3) the lawyer has obtained informed written consent from the client. If the lawyer represents the People or a governmental entity, the consent shall be obtained from the head of the office or a designee of the head of the office by which the lawyer is employed.
(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as a witness unless precluded from doing so by rule 1.7 or rule 1.9.
Only one major change has been made to the rule governing the requirements of a lawyer serving as a witness during a trial. As set forth above, Rule 3.7 of the CBA’s new RPC (formerly Rule 5-210 – Member as Witness) has two subdivisions instead of just one (as did the previous version of the rule). In addition to the three exceptions to the prohibition of an attorney serving as a trial witness, subdivision (b) adds the condition that a lawyer may act as advocate in a trial in which another lawyer in the same firm is likely to be called as a witness … unless he or she is precluded from doing so by Rule 1.7 or Rule 1.9 (duties to former clients and conflicts of interest affecting current clients).
There is only one major difference between the American Bar Association (ABA) RPC’s Rule 3.7 and the CBA’s Rule 3.7. Instead of allowing a lawyer to serve as a witness if he or she has obtained informed written consent from the client, subdivision (a)(3) in ABA’s rule says a lawyer may serve as a trial witness if “disqualification of the lawyer would work substantial hardship on the client.”
Benefit: Generally speaking, an attorney who fully understands the restrictions placed on them during a trial (in this case, their possible role as a witness) will be better equipped to adequately represent their clients.
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