Opinion 88-35
(October 1988)

In your letter of October 4, 1988, you have raised the question of whether under Rule 3.7(a) of the Rules of Professional Conduct you are required to disqualify yourself as counsel for your client (who is also your wife) in an action for malicious prosecution, defamation and interference with contractual relations where defense counsel has said that he intends to call you as a witness at trial to testify as to your client's medical condition. You believe that you are not a necessary witness and that your disqualification would work an undue hardship on your client.

Based on the facts in your letter, it is premature to require your withdrawal during pre-trial proceedings because Rule 3.7 only precludes a lawyer-witness from acting as counsel at trial. Moreover, for the reasons which follow, it is premature to state whether you will be a necessary witness or, if you are a necessary witness, whether the hardship exception ((a)(3)) applies.1

FACTS

Defendants dismissed your client as an employee and charged her with criminal conduct related to her work. You and co-counsel represented her in a criminal action where the criminal charges were discharged and ultimately expunged.

Thereafter you and co-counsel filed a civil action against defendants for malicious prosecution, etc. Although you met plaintiff for the first time when you represented her in the criminal action, four months after filing the civil lawsuit, you married her. Following some discovery, including depositions, defendants' counsel requested that you withdraw as counsel since he planned to call you as a witness as to plaintiff's medical condition. Discovery is apparently ongoing and you have not been deposed.

Co-counsel for plaintiff has serious medical problems. It may preclude him from handling the case should you withdraw.

DISCUSSION

Rule 3.7(a) provides that:

(a) 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; or

(3) disqualification of the lawyer would work substantial hardship on the client.

1. Rule 3.7 Does Not Require an Attorney to Withdraw as Counsel Prior to Trial.

While 3.7(a) disqualifies an attorney who is a necessary witness on a contested issue from trying a case unless disqualification would work a substantial hardship on his client, there is no similar bar to an attorney witness acting as an advocate in pre-trial proceedings. Accordingly, even if you are a "necessary witness" and there is no "substantial hardship," to your client, you are not precluded from representing your wife in pre-trial proceedings. However, the Committee realizes that your inquiry goes beyond representation of plaintiff in pretrial proceedings and that you believe it would be a substantial hardship to your client if you cannot try the case. Accordingly, it is necessary to address the questions of (1) whether you are a necessary witness; and (2) whether your disqualification would work a substantial hardship on your client.

2. It Is Uncertain Whether You Are a "Necessary Witness" Under Rule 3.7(a).

The term "necessary witness" is not defined in the Rules of Professional Conduct. However, Judge Pollak has recently stated that the term "necessary witness" as used in. Rule 3.7 parallels former DR5-102(A)'s description of when counsel "ought to be called as a witness on behalf of his client". Anderson v. Reliance Standard Life Ins. Co., C.A. No. 86-3328 (E.D. Pa. 1988) Lexis Slip Op. at p. 3. Judge Pollak further stated that the Third Circuit has interpreted the old standard narrowly to mean the "'indispensable witness' - the 'lawyer witness who has crucial information in his possession which must be divulged.'" Id., (quoting Universal Athletic Sales Co. v. American Gym, 546 F.2d 530, 538-39, n. 21 (3d Cir. 1977). It must be noted, however, that Rule 3.7(a) is broader than former DR5-102(A) and is designed to protect both the client of the lawyer witness and the opposing party. Accordingly, disqualification may be appropriate where counsel is a necessary witness for the opposing party, even where his testimony would be prejudicial to his own client. See Comment to Rule 3.7.

In determining whether a lawyer witness' testimony is necessary, the drafters of Rule 3.7 have suggested a balancing test which considers the nature of the case, the importance and probable tenor of the lawyer's testimony and the probability that the lawyer's testimony will conflict with that of other witnesses. In weighing these factors, the Committee believes that in considering a disqualification the trial court will give due weight to the fact that medical witnesses are available to testify as to your client's present and past emotional state.

Moreover, the Committee believes the trial court will be reluctant to allow defense counsel to call you as a witness merely for purposes of disqualifying you as counsel and that the trial court would insist on an offer of proof as to your prospective testimony. In that connection, the Committee questions the purpose for which defense counsel seeks your testimony. Certainly, he does not plan to call you so you can give favorable testimony on behalf of your wife.² Moreover, you have not suggested in your letter that your testimony would be favorable to defendants. However, without knowing your specific testimony and how it relates to the testimony of other witnesses in this case, we cannot give you a conclusive opinion as to whether you are an indispensable witness.³

3. It is Uncertain Whether Disqualification Would Work a Substantial Hardship on Your Client.

Based on the facts you have provided, this Committee is not able to assure you that your disqualification would work a substantial hardship on your client within the meaning of Rule 3.7. First, such a determination cannot be made without knowing the nature of your testimony so that the interest in avoiding hardship to your client can be balanced against the interest in avoiding prejudice to your client or your client's opponent. See Comment to Rule 3.7. See also Anderson v. Reliance Standard Life Insurance Co., supra.

In the event that you are found to be a necessary witness the increased cost of obtaining new counsel could be a factor in determining whether disqualification would work a substantial hardship on your client under the Rules of Professional Conduct. Under the former Disciplinary Rules, financial hardship alone was insufficient; "substantial hardship" was limited to cases involving the "distinctive value of the lawyer and his firm as counsel in the particular case," DRS-102(B)(4).

This Committee does not believe that a precise rule defining substantial hardship is appropriate and that substantial hardship must be determined on a case by case basis, after evaluating all surrounding circumstances including the nature of the lawyer's expected testimony and the degree of prejudice to the lawyer's client or the client's adversary.

CONCLUSION

The courts are justifiably reluctant to disqualify a lawyer witness on the basis of mere speculation as to what his testimony will be and whether he will or should be called as a witness. Moreover, the lawyer's testimony cannot be de minimis or so insignificant in the context of the case that it raises suspicion that it is a tactical artifice. See Freeman v. Kulicke Sofa Industries, Inc., 449 F. Supp. 974 (E.D. Pa. 1978). However, in the absence of full discovery, it is impossible to determine whether your testimony is necessary. In the instant case, you have not been deposed and you have not identified the nature of your expected testimony regarding your client's medical condition. If it appears that following discovery, you are a necessary witness either for your client or the defendants, it will then be necessary to consider, based on all the surrounding circumstances, whether the "substantial hardship" exception to disqualification applies. If you are unable to resolve this issue to the satisfaction of opposing counsel, the Committee assumes that the trial court will resolve the controversy for you after considering the factors outlined in this letter.

Notes

1. Based on your letter, the Committee has assumed that your testimony would relate to a contested issue and that it would not relate to the nature and value of legal services. Accordingly exceptions (a)(l) and (a)(2) are not at issue.

2. On the other hand, the Committee cautions you to consider whether it is in your client's best interest that you continue to represent her while foregoing the possibility of testifying on her behalf as to her mental state.

3. This Committee did not consider the extent to which issues of attorney-client privilege may arise in the event that you are deposed. Suffice it to say that the tactic of calling a lawyer as a witness should not result in a general waiver of the privilege. Nevertheless, counsel should be cognizant of this potential problem.