Formal Opinion 182
(1989)
Lawyer as Litigant and Witness
Questions:
An opinion has been requested on the following questions:
1. May a lawyer who is a party in an action and a necessary witness represent himself or herself?
2. May a partner or associate of the lawyer represent him or her in any capacity in those proceedings?
Answers:
1. There is no bar in the Rules of Professional Conduct to attorney representing himself or herself in a legal proceeding. Lawyers, like other litigants, have a right to select their own counsel. Although RPC 3.7 states that a lawyer shall not act both as an advocate at a trial and as a necessary witness, this Rule applies to lawyers testifying on behalf of a client. An "advocate" is one who pleads the case of another, while a lawyer in this circumstance pleads only his or her own case. The purposes of the Rule are to avoid confusion in the mind of the trier of fact between the lawyer’s role as an advocate and as a witness, to avoid a conflict of interest between the lawyer and a client, and to avoid prejudicing the opposing party where an attorney also takes the oath as witness. None of these purposes would be thwarted where a lawyer who is a party litigant elects to represent himself or herself.
2. RPC 3.7 prohibits any lawyer from acting as an advocate in a trial in which the lawyer "or another lawyer in the same firm" is likely to be a necessary witness. The exceptions to the Rule are very narrow. The purposes of RPC 3.7, however, are not implicated where the lawyer/witness is a litigant but is not acting as an advocate at the trial. In such a case, the litigant does not fulfill the role of a lawyer in the proceedings; thus the litigant who is not an advocate can be represented by a lawyer in the same firm who is an advocate without creating confusion about the role of the lawyer/advocate and without prejudicing the opposing party.. The Rule is not intended to bar a lawyer/litigant from being represented by another lawyer in the same firm as long as the litigant does not also act as advocate in the proceedings. The lawyer/advocate, however, must comply with RPC 1.7(b), as there may be circumstances in which representation of another lawyer in the same firm may be limited by the advocate’s own interests.
