The Advocate

Summer 2013

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Practice Pointer: Disqualification under Rule 3.7

By Monica Handa and Nick Cumings


Circumstances occasionally arise that allow an attorney on one side of a case to call the opposing party’s attorney as a witness in that matter.  This poses a peculiar problem for the party whose attorney is in jeopardy of becoming a witness.

An attorney called as a witness in a matter where they are also counsel may be barred from continuing to act as counsel in that case as a result of this muddling of the roles of advocate and witness.  Rule 3.7 of the Maryland Lawyers’ Rules of Professional Conduct attempts to balance the competing interests in this scenario: first, the interest of a client in choosing her own attorney, where the advocate-witness may be disqualified from acting as counsel after being called as a witness; and second, the possible prejudice to the adverse party should their request to call opposing counsel as a witness be denied or should the advocate-witness be permitted to assume the dual role of both counsel and witness.

The Rule
Rule 3.7 prohibits a lawyer from acting as an advocate at a trial in which that 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 a substantial hardship on the client.” Because Local Rule 704 of the United States District Court for the District of Maryland incorporates the MLRPC, Rule 3.7 applies equally in Maryland federal court.

Who May Cry Wolf
Any lawyer may raise the issue of disqualification, including the judge.  See Franklin v. Clark, 454 F. Supp. 2d 356, 364 (D. Md. 2006) (imposing affirmative duty to raise issue of disqualification if facts support doing so) and EEOC v. Bardon, Inc., 2010 U.S. Dist. LEXIS 3980, *3 (D. Md. 2010) (court raises issue of disqualification sua sponte).

What Happens
If disqualification is on the table, the trial court follows a basic analysis.  First, the party seeking disqualification must articulate a specific alleged violation of the MLRPC. Klupt v. Krongard, 126 Md. App. 179, 203-04 (Md. App. 1999). The court next considers whether there was an actual violation of the rule, although a finding of a violation “does not result in automatic disqualification.”  Id.  Instead, the court retains the discretion to impose—or decline to impose—disqualification as a sanction for the violation.  Id.

It is important to note that disqualification is disfavored as a “drastic remedy” that invites the potential for tactical abuse and deprives litigants of the freedom to choose their own counsel.  Franklin, 454 F. Supp. 2d at 364-65.  Courts therefore scrutinize such requests carefully.  Klupt, 126 Md. App. at 206, 728 A. 2d at 740.

Factors
Courts typically consider three factors when weighing disqualification: (1) materiality; (2) exclusivity; and (3) prejudice.  Bardon, 2010 U.S. Dist. LEXIS 3980 at *5. Disqualification is less likely where the information held by the advocate-witness is not material, where the advocate-witness is not the exclusive source of the evidence, and/or where the client is unlikely to suffer prejudice by the attorney’s testimony but would suffer prejudice if deprived of counsel.  See, e.g. Klupt, 126 Md. App. at 206-07, 728 A. 2d 740.

The court also balances the interests of the client, the tribunal, and the opposing party, considering “the effect of the disqualification on the lawyer’s client, whether the tribunal is likely to be misled, whether the opposing party is likely to suffer prejudice, and whether one or both parties could reasonably foresee that the lawyer would probably be a witness.”  Bardon, 2010 U.S. Dist. LEXIS 3980 at *7-8.

Note that the court is most likely to grant such a motion “when the advocate is expected to testify for his own client.”  Franklin, 454 F. Supp. 2d at 371.  However, the party moving for disqualification “bear[s] ‘a high standard of proof to show that disqualification is warranted’ because it is such a drastic measure.”  Id., at 364.

Consider the Jury
Judges are more likely to impose disqualification if a jury is involved.  See Bardon, 2010 U.S. Dist. LEXIS 3980 at *7-8.  This is done to protect the integrity of the jury, which may otherwise be confused by an attorney switching roles from witness to advocate within the same proceeding.

A party seeking disqualification should therefore beware, as calling an opposing attorney as a witness in a hearing or trial does not always result in disqualification.  Particularly when a jury is involved, designating an attorney as a witness without disqualification of that attorney as opposing counsel may convey a mixed message to a jury and perhaps even lend credibility to the advocate-witness’s testimony solely due to their continued status as counsel in that case.

Silver Lining
Like many topics in the law, and especially in legal ethics, disqualification is a murky issue without an easy answer. However, Rule 3.7(b) allows another attorney within the disqualified attorney’s firm to act as an advocate so long as no conflict of interest arises pursuant to MLRPC Rule 1.7 or 1.9.

Remember also that, unlike some other states, Maryland’s Rules only speak to disqualification of an attorney at trial, not at hearings or other “adversarial proceedings” which fall short of that definition.  See Clough v. Richelo, et al., 616 S.E. 2d 888, 895 (Ga. App. 2005); New Hampshire v. Van Dyck, 827 A.2d 192, 195 (N.H. 2003); Merrill Lynch Bus. Fin. Servs., Inc. v. Nudell, 239 F. Supp.2d 1170 (D. Colo. 2003).  Therefore, disqualification may not be a concern where counsel of record is called as a witness at a hearing for a pre-trial motion which falls short of trial, especially when no jury is present.

Monica Handa and Nick Cumings are associates at Cochran & Owen, LLC, where they focus their practice on commercial and business litigation throughout Maryland, DC, and Virginia. They can be reached at mhanda@cochranowen.com and ncumings@cochranowen.com

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