Dropping into a waiting chair, Paradox wasted no time. “Ethox, I’m in trouble. I need your help.”
“What’s wrong?” Ethox replied, looking up from a stack of research. “I was helping Senior Litigator on the Jay-Kaye Partnership dissolution litigation. Our client Jay is seeking a preliminary injunction against his former partner Kaye. I drafted all the pleadings and was looking forward to some exciting work on the case. But now Kaye has filed a motion to disqualify me and the firm. Kaye claims that I am a material witness and that under ABA Model Rule 3.7, the entire firm and I should be disqualified from the case. Is this right?”
“Probably not,” Ethox answered. “But it is a common misunderstanding of Rule 3.7. Rule 3.7 seeks to protect the fact finder—the judge or jury—from confusion by prohibiting a lawyer who serves as a witness in a proceeding from also serving as an advocate in that same proceeding.”
“The good news about Rule 3.7,” Ethox continued, “is that its impact is limited to the individual lawyer. Its effect does not impute or spread to other lawyers in a law firm. Thus, if you are a witness, you cannot be both an advocate and a witness at trial or other in-court proceedings. But you can still work behind the scenes, on pretrial matters, for instance, and perhaps even at depositions and the like, as long as the transcripts would not be used at trial and reveal your dual role. Moreover, other lawyers at the firm—including Senior Litigator—can still argue the case in court and handle proceedings without limit, even if Rule 3.7 limits your participation. After all, Rule 3.7 would not apply as long as Senior Litigator and other firm lawyers are not themselves acting as both advocate and witness.”
“Oh, that is good news,” Paradox sighed.
Ethox proceeded cautiously. “Unfortunately, that may not end the analysis of whether we should be handling the case.”
“Really? What do you mean, Ethox?”
“Why does Kaye think you are going to be a witness? Who were our clients, and what legal services did we provide?” Ethox asked.
“Jay has been a client for a very long time. The firm also provided tax advice to Jay-Kaye Partnership several years ago, but that relationship ended. Then, a few months ago, Jay and Kaye started fighting. We advised Jay and I helped draft some amendments to the Jay-Kaye Partnership agreement. Now Kaye claims those amendments, and the process under which they were adopted, may be relevant to the litigation.”
“I was afraid it was something like this. In addition to the relatively limited restrictions in Rule 3.7, we need to make sure that our conduct conforms to all the Rules of Professional Conduct, including the conflict of interest rules, such as Rules 1.7 and 1.10.”
Read more...The Journal of the Section of Litigation (PDF)