Friday, December 7, 2007

Lawyer As Witness Rule

A decision today from the Nebraska Supreme Court applies the lawyer as witness rule (Rule 3.7) in a civil case, upholding the trial court's disqualification order. The attorney, who is admitted in Illinois, had been granted pro hac vice status in Nebraska. The client sued a number of persons and a high school, alleging that she had been falsely characterized as an abusive mother who was mentally unfit. The suit contended that "defendants conspired to destroy her relationship with her children."

The lawyer met the client in an Internet chat room: "it appears that [they] developed a friendship and ultimately a close personal relationship." When the motion to disqualify was filed, the lawyer was deposed and acknowledged that he had witnessed a series of interactions between his client and certain defendants. The client appealed the disqualification order.

The court, noting that the moving party bears the burden of establishing that the testimony will be necessary, found that burden had been met here. The testimony is material and unobtainable elsewhere. Although there are other witnesses to the events, "these other witnesses are unable to provide the same evidence the attorney could offer." Also, "[s]ignificant to [the court's] decision is [the attorney's] active participation in relevant altercations between the parties." There is no "substantial hardship" caused by disqualification because "[the client] should have reasonably foreseen that [the attorney] would probably be a witness at trial" and she had alternative counsel. (Mike Frisch)

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