Monday, July 12, 2021

Funhouse Mirrors And Rule 3.7

The Delaware Court of Chancery dealt with a "lawyer as witness" issue raised in an unusual manner.

The IDT defendants describe their representation in this matter as being led by their litigation “quarterback,” who I will refer to here as Lead Counsel. Lead Counsel maintains his principal practice in New York; he was admitted pro hac vice in this matter on July 24, 2017.  He was also a witness to facets of the transaction at issue.

The issue was not raised as a motion to disqualify

“It is a well-established ethical principle that, in general a lawyer who represents a client in a litigated matter may not also appear therein as a witness, either for or against the client.” Thus spoke our Supreme Court, in 1994, in Matter of Estate of Waters. Yet that is precisely what Lead Counsel for the IDT Defendants proposes (at least provisionally) to do in this litigation. Specifically, he seeks to both advocate for the IDT Defendants at trial as lead counsel, and then call himself as a fact witness on behalf of his clients, the IDT Defendants. The Plaintiffs brought the Motion to prohibit Lead Counsel from doing so, arguing that the Delaware Lawyers’ Rules of Professional Conduct—specifically Rule 3.7(a)—do not allow a lawyer to both advocate at trial and be a witness, except in narrow circumstances that do not apply here. The Plaintiffs posit that, while they have no preference as to whether Lead Counsel appears as a fact witness or the trial advocate, he should not be allowed to perform both roles in the same trial.

The court squarely rejected the defendants' novel interpretation

In what strikes me as a funhouse-mirror reading of the rule, the IDT Defendants argue that this rule provides that a lawyer may appear both as witness and advocate, so long as his testimony is merely helpful to his client, but not necessary. The result of this reading is that where the advocate’s testimony is required at trial, it is excluded, but where merely desirable, the lawyer may both advocate and testify, willy-nilly.

That interpretation is an absurdity. It cannot be that an advocate at trial is permitted to testify where his testimony is not necessary, but he must recuse himself from advocacy where his testimony is necessary. The absurdity is avoided by reading Rule 3.7(a) in light of the “well-established principle”  elucidated by the Supreme Court in Waters. A lawyer who represents a client in a litigated matter as a trial advocate should not appear as a witness therein. Moreover, she should eschew the role of advocate at trial if it is likely that her testimony is necessary to the creation of a record sufficient to the administration of justice.

The defendants claimed laches

It is the responsibility of every Delaware attorney—and not her opponent—to ensure her own compliance with ethical responsibilities. It is no defense to argue that another party should have pointed out a lapse of ethics sooner. Lead Counsel has known from the beginning that he was a potential witness in his clients’ case. There can be no argument that the Plaintiffs have engaged in sandbagging given this scenario. Moreover, the Plaintiffs are not calling Lead Counsel as a witness, nor are they moving to disqualify. For the reasons that ground the fundamental rule against a lawyer testifying and advocating in the same matter,  they seek to determine if in fact Lead Counsel will attempt to be a witness for the IDT Defendants at the upcoming trial, while also acting as the IDT Defendants’ advocate, a dual role the Plaintiffs oppose as unfair. In any event, if an attorney seeks to hop between roles at trial, jack-in-the-box fashion, this issue would necessarily be before me; as presiding judge I must address it, sua sponte or otherwise.

Editor's note: Wasn't that a scene in the movie Bananas?

Enforcement of the ethical rules of conduct is solely within the purview of the Supreme Court.  The exception is where the trial court perceives that violation of ethical precepts affects her ability to do justice in the matter before her.  To reiterate what I told the parties at oral argument, this matter is premature. The IDT Defendants have not definitively committed to calling Lead Counsel as a witness, and the IDT Defendants asked that I impose a meet-and-confer obligation on the parties to attempt to stipulate to facts that would obviate Lead Counsel’s potential role as witness. I agreed and gave the parties 20 days to report back as to whether the issue was moot.

In further guidance, I reiterate here that “it is a well-established ethical principle that, in general a lawyer who represents a client in a litigated matter may not also appear therein as a witness.” If the IDT Defendants seek an exception to this general principal, I must first determine whether this ethical matter is within my bailiwick, and, if so, whether the testimony is permissable. I have no intention of addressing this matter in an advisory fashion. If, at the end of the 20-day meet-and-confer period, Lead Counsel still intends to testify, he shall file a proffer of his testimony together with a statement of why what his clients call non-essential testimony is nonetheless required in the interests of justice.

The cited case - Estate of Waters - has been part of my teaching materials since it was issued in 1994. (Mike Frisch)

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Woody Allen was Pro Se, so he could do it (as I recall - but I am old).

Posted by: Richard Underwood | Jul 12, 2021 2:39:46 PM

Yes but he jumped back and forth from the witness chair to the well of the court and broke under his intense cross-examination of himself.

Posted by: Michael Frisch | Jul 13, 2021 4:09:27 AM

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