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RULE 19-303.7. ATTORNEY AS WITNESS (3.7)

West's Annotated Code of MarylandMaryland Rules

West's Annotated Code of Maryland
Maryland Rules
Title 19. Attorneys
Chapter 300. Maryland Attorneys' Rules of Professional Conduct
Advocate [Rules 19-303.1 to 19-303.9]
MD Rules Attorneys, Rule 19-303.7
RULE 19-303.7. ATTORNEY AS WITNESS (3.7)
(a) An attorney shall not act as advocate at a trial in which the attorney 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 attorney would work substantial hardship on the client.
(b) An attorney may act as advocate in a trial in which another attorney in the attorney's firm is likely to be called as a witness unless precluded from doing so by Rule 19-301.7 (1.7) or Rule 19-301.9 (1.9).
COMMENT
[1] Combining the roles of advocate and witness can prejudice the tribunal and the opposing party and can also involve a conflict of interest between the attorney and client.
Advocate Witness Rule--[2] The tribunal has proper objection when the trier of fact may be confused or misled by a an attorney serving as both advocate and witness. The opposing party has proper objection where the combination of roles may prejudice that party's rights in the litigation. A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof.
[3] To protect the tribunal, section (a) of this Rule prohibits an attorney from simultaneously serving as advocate and necessary witness except in those circumstances specified in subsections (a)(1) through (a)(3) of this Rule. Subsection (a)(1) of this Rule recognizes that if the testimony will be uncontested, the ambiguities in the dual role are purely theoretical. Subsection (a)(2) of this Rule recognizes that where the testimony concerns the extent and value of legal services rendered in the action in which the testimony is offered, permitting the attorneys to testify avoids the need for a second trial with a new attorney to resolve that issue. Moreover, in such a situation the judge has firsthand knowledge of the matter in issue; hence, there is less dependence on the adversary process to test the credibility of the testimony.
[4] Apart from these two exceptions, subsection (a)(3) of this Rule recognizes that a balancing is required between the interests of the client and those of the tribunal and the opposing party. Whether the tribunal is likely to be misled or the opposing party is likely to suffer prejudice depends on the nature of the case, the importance and probable tenor of the attorney's testimony, and the probability that the attorney's testimony will conflict with that of other witnesses. Even if there is risk of such prejudice, in determining whether the attorney should be disqualified due regard must be given to the effect of disqualification on the attorney's client. It is relevant that one or both parties could reasonably foresee that the attorney would probably be a witness. The conflict of interest principles stated in prior, similar Rules 19-301.7 (1.7), 19-301.9 (1.9) and 19-301.10 (1.10) have no application to this aspect of the problem.
[5] Because the tribunal is not likely to be misled when an attorney acts as advocate in a trial in which another attorney in the attorney's firm will testify as a necessary witness, section (b) of this Rule permits the attorney to do so except in situations involving a conflict of interest.
Conflict of Interest--[6] In determining if it is permissible to act as advocate in a trial in which the attorney will be a necessary witness, the attorney must also consider that the dual role may give rise to a conflict of interest that will require compliance with Rules 19-301.7 (1.7) or 19-301.9 (1.9). For example, if there is likely to be substantial conflict between the testimony of the client and that of the attorney, the representation involves a conflict of interest that requires compliance with Rule 19-301.7 (1.7). This would be true even though the attorney might not be prohibited by section (a) of this Rule from simultaneously serving as advocate and witness because the attorney's disqualification would work a substantial hardship on the client. Similarly, an attorney who might be permitted to simultaneously serve as an advocate and a witness by subsection (a)(3) of this Rule might be precluded from doing so by Rule 19-301.9 (1.9). The problem can arise whether the attorney is called as a witness on behalf of the client or is called by the opposing party. Determining whether or not such a conflict exists is primarily the responsibility of the attorney involved. If there is a conflict of interest, the attorney must secure the client's informed consent, confirmed in writing. In some cases, the attorney will be precluded from seeking the client's consent. See Rule 19-301.7 (1.7). See Rule 19-301.0 (b) (1.0) for the definition of “confirmed in writing” and Rule 19-301.0 (f) (1.0) for the definition of “informed consent.”
[7] Section (b) of this Rule provides that an attorney is not disqualified from serving as an advocate because an attorney with whom the attorney is associated in a firm is precluded from doing so by section (a) of this Rule. If, however, the testifying attorney would also be disqualified by Rule 19-301.7 (1.7) or Rule 19-301.9 (1.9) from representing the client in the matter, other attorneys in the firm will be precluded from representing the client by Rule 19-301.10 (1.10) unless the client gives informed consent under the conditions stated in Rule 19-301.7 (1.7).
Model Rules Comparison: Rule 19-303.7 (3.7) is substantially similar to the language of the Ethics 2000 Amendments to the ABA Model Rules of Professional Conduct.

Credits

[Adopted June 6, 2016, eff. July 1, 2016.]
MD R Attorneys, Rule 19-303.7, MD R ATTORNEYS Rule 19-303.7
Current with amendments received through December 15, 2019.
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