Ethical risks when an attorney takes the stand

An experienced litigator may have questioned hundreds of witnesses in her or his career and typically is fully aware of how the process works. However, an attorney who is called to serve as a witness in an action faces unique risks. Indeed, while attorneys may understand certain risks generally faced by all witnesses (such as perjury or impeachment), attorneys also face a number of other potential hazards that they should consider carefully if they are called to take the stand.

There are many scenarios in which testimony may be sought from an attorney. For example, when potential problems arise, a client's first call is often (rightly) to their attorney. However, when those problems turn into litigation, the attorney could be called as a fact witness relating to their early involvement in the events now at issue in the lawsuit. Depending on the circumstances, a client may want their attorney to testify to bolster their defense. Alternatively, an opposing party may call that counsel as a witness for strategic reasons. As discussed below, the exact risks faced by attorneys can vary depending on the intended purpose of the testimony.

Client Requests

Because attorneys may sometimes be more knowledgeable regarding the circumstances giving rise to litigation than the clients themselves, some clients believe that their attorney is the best witness to state their case at trial. Under certain limited circumstances, an attorney's testimony may indeed strengthen the client's case, such as when attorney testimony is used to establish an "advice of counsel" defense.

However, there are many potential pitfalls when an attorney testifies for a client. For example, the testimony may jeopardize the client's attorney-client privilege and work product protection. Indeed, the maxim that the attorney-client privilege cannot be used as both a sword and a shield often dictates that the privilege is waived when an attorney testifies on behalf of a client.

In certain cases, it may be possible to offer testimony limited to topics that segregate privileged and non-privileged information. However, because it can be difficult to avoid crossing the line into privileged information, attorneys may want to obtain informed consent in writing from clients before agreeing to testify on their behalf.

Next, certain ethics rules and evidentiary rules can operate to bar some attorneys from continuing the representation after testifying on a client's behalf. For example, Rule 5-210 of the California Rules of Professional Conduct provides that an attorney "shall not act as an advocate before a jury which will hear testimony from the [attorney]" unless the attorney's testimony: (1) relates to an uncontested matter; (2) relates to the nature and value of legal services rendered; (3) or unless the attorney has the informed, written consent of the client.

Lastly, attorney testimony can potentially create a conflict of interest between the attorney and her or his client. There can be situations where the attorney's obligation to provide truthful testimony under oath conflicts with the client's interests, especially where the client has waived the attorney-client privilege to allow the testimony. In addition, the testimony might suggest a violation of the ethics rules or the standard of care (operating as both evidence of a deviation from the applicable standard of care and as an admission under oath).

Because of these risks, it can be helpful for an attorney to retain their own independent counsel to advise and protect the attorney-witness in situations where there is a potential for conflicts.

Opposing Counsel Requests

Too often, attorneys are targeted as potential witnesses by overly aggressive opposing counsel. Fortunately, many courts recognize a baseless attempt to depose opposing counsel as nothing more than a litigation tactic and have enacted strict rules for parties attempting to obtain discovery from opposing counsel (instead of obtaining discovery directly from the opposing party).

Nonetheless, in such circumstances, there are a wide range of considerations for the attorney. As an initial matter, attorneys may want to discuss the subpoena or discovery request with their client and consider whether there is a basis to challenge the attempt to obtain evidence from the attorney.

In addition, because service of process (such as through a subpoena) can trigger a mandatory reporting obligation under some legal malpractice policies, the attorney and/or the law firm may consider whether it is necessary to report the discovery and/or subpoena to the attorney's legal malpractice insurer. To help guide attorneys through these issues, it is often helpful to involve the firm's in-house counsel as soon as the subpoena or discovery request is received.

Third-Party Requests

In other situations, an attorney may be called to testify by a third party as a fact witness. For example, an attorney who drafted a will may be called to testify during probate of the will regarding the competency of the testator. Unlike a request for testimony by a current client (which may raise conflict issues involving current clients), requests for fact testimony by third parties more often implicate a former representation. Nonetheless, because such circumstances may create a potential conflict, it may similarly be helpful to discuss the situation with the firm's in-house counsel to determine whether notice should be provided to the former client.

In addition, third-party requests for testimony can sometimes come from government agencies, including law enforcement agencies. Notwithstanding any assurances provided, most attorneys in this situation will proceed with caution, even when simply providing an informal interview. Indeed, attorneys requested or subpoenaed by a government agency can again consider whether the assistance of counsel is necessary.

Given these risks, it is clear that an attorney is not just another witness. Instead, because attorney testimony can implicate a wide range of ethical and practical issues, most attorneys will tread carefully when asked to take the stand.