December 11, 2009
Lawyer As Witness
The State of Washington Court of Appeals, Division III, has reversed an order disqualifying counsel for two persons injured in a one-car rollover accident. The court that ordered disqualification had found that the lawyer was a necessary witness. The court here concluded that the lower court had applied the wrong legal standard, citing the findings required for disqualification in a prior case:
[A] motion for disqualification must be supported by a showing that the attorney will give evidence material to the determination of the issues being litigated, that the evidence is unobtainable elsewhere, and that the testimony is or may be prejudicial to the testifying attorney's client.
The issue arose in an interpleader action filed by an insurer that issued an uninsured motorist policy. When the injured clients objected to the proceeding, the insurance company sued their lawyer for third-party malpractice and sought to remove the lawyer. The disputed issue was whether insurer or the lawyer was responsible for foot-dragging delay.
The court here did not rule out the possibility of disqualification on renewed consideration of the issues and proper standard after a hearing. (Mike Frisch)
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