Thursday, April 7, 2005
News reports (See, e.g., Wall Street Journal, Atlanta Jrl Constitution) are talking about the possibility that Dennis Kozlowski's attorney may be an upcoming witness at his trial. Kozlowski, former CEO of Tyco, along with Mark Swartz is presently on trial for a host of charges, including larceny under New York State law. It seems that Attorney David Boies did an internal investigation of the company for Tyco's Board and that he may now be a witness in the trial. The problem is that there seems to be a conflict in testimony between what he might say, and what Kozlowski's present attorney might say with regard to Kozlowki's departure from the company.
So can a lawyer testify at the trial of their own client? And if so, can they ask themselves the questions on direct examination? It could be quite a circus if the attorney would have to ask themselves questions, that they would then answer.
First, in the rare circumstance that this happens, the witness testifying normally has another attorney ask the questions -- so that's easy to resolve. But the tougher question is whether the present attorney can testify in the trial of his client in order to rebut testimony presented by a witness at the trial (the fact that the initial witness is an attorney is not a factor). And if he or she does testify, can they remain counsel for the client for the rest of case.
The ABA Model Rules of Professional Conduct speak to this issue in Rule 3.7(a), where it states:
(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on the client. . . .
Rule 3.7(a)(1)(2) do not apply here, but the question of (3) is one that may need to be considered. Would it be a substantial hardship for Kozlowski to have to get new counsel, or to proceed without his lead counsel, for the rest of this trial. And if the prosecution really needs the initial testimony, knowing full well that it might mean that trial counsel may need to take the stand and respond, do they want to risk a problem in the case just for this testimony?
The New York Ethics Rules differ slightly, but not significantly on this issue. DR5-102 states:
DR 5-102A. A lawyer shall not act, or accept employment that contemplates the lawyer's acting, as an advocate on issues of fact before any tribunal if the lawyer knows or it is obvious that the lawyer ought to be called as a witness on a significant issue on behalf of the client, except that the lawyer may act as an advocate and also testify:
1. If the testimony will relate solely to an uncontested issue.
2. If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony.
3. If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or the lawyer's firm to the client.
4. As to any matter, if disqualification as an advocate would work a substantial hardship on the client because of the distinctive value of the lawyer as counsel in the particular case. . . .
Here again, the issue may be whether it would be a substantial hardship to the client. But do the prosecutors in the Kozlowski trial really want to run the risk of having the defendant's own counsel up on the witness stand testifying for the defense.