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Published online by Cambridge University Press: 20 November 2018
A long accepted canon of professional ethics forbids a lawyer to appear in a particular matter in the dual role of advocate and witness for his client. As Disciplinary Rule 5-101(B) of the American Bar Association's Code of Professional Responsibility states:
A lawyer shall not accept employment in contemplated or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness….
1 Both DR 5-101(B) and 5-102(A) recognize several exceptions to the rule, none of which concerns us here.Google Scholar
2 EC 5-10. This language is stricter than the more general exception of the former Canon 19 “when essential to the ends of justice.” See also Charles Frankel, Review, 43 U. Chi. L. Rev. 874, 878 (1976).Google Scholar
3 It read:Google Scholar
When a lawyer is a witness for his client, except as to merely formal matters, such as the attestation or custody of an instrument and the like, he should leave the trial of the case to other counsel. Except when essential to the ends of justice, a lawyer should avoid testifying in court in behalf of his client.Google Scholar
ABA Canons of Professional Ethics (1967).Google Scholar
4 Art. 6, 43 A.B.A. J. 223, 224-25 (1957).Google Scholar
5 Art. 12.Google Scholar
6 Rex v. Secretary of State, ex parte Ezekiel, [1941] 2 K.B. 169, 175 n.(1):Google Scholar
A barrister may be briefed as counsel in a case or he may be a witness in a case. He should not act as counsel and witness in the same case.Google Scholar
7 E.g., Israel, Rules of the Chamber of Advocates (Professional Ethics) 5726-1966, rule 42.Google Scholar
8 Alger v. Merritt, 16 Iowa 121 (1864). See also Inglett & Co. v. Everglades Fertilizer Co., 255 F.2d 342, 349 (5th Cir. 1958), in which the court described the forbidden practice as “inherently unsound.”Google Scholar
9 Frear v. Drinker, 8 Pa. 520 (1848).Google Scholar
10 Ferraro v. Taylor, 197 Minn. 5, 12, 265 N.W. 829, 833 (1936). See also In re Estate of Comegys, 204 Oreg. 512, 527, 284 P.2d 758, 765 (1955). An English court called the practice “objectionable … contrary to good taste and good feeling … revolting ….” Cobbett v. Hudson, 1 El. & Bl. 11, 14, 93 Rev. R. 1, 3 (Q.B. 1852).Google Scholar
11 No. 339 (1975).Google Scholar
12 The following is the full text of EC 5-9:Google Scholar
Occasionally a lawyer is called upon to decide in a particular case whether he will be a witness or an advocate. If a lawyer is both counsel and witness he becomes more easily impeachable for interest and thus may be a less effective witness. Conversely, the opposing counsel may be handicapped in challenging the credibility of the lawyer when the lawyer also appears as an advocate in the case. An advocate who becomes a witness is in the unseemly and ineffective position of arguing his own credibility. The roles of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the cause of another, while that of a witness is to state facts objectively.Google Scholar
13 See also John F. Sutton, Jr., The Testifying Advocate, 41 Tex. L. Rev. 477, 482-83 (1963), which also suggests that fairness to the client requires that the lawyer not make himself subject to impeachment by accepting the case. This should be distinguished from the early practice of disqualifying the lawyer as a witness for interest. 6 John Henry Wigmore, Evidence 596-97 (3d ed. 1940). There, the lawyer could not appear as a witness. Under the rule of ethics the lawyer's testimony is competent but he is required to give up the representation. See note 30 infra. For recent criticism of this rationale, see Comment, The Rule Prohibiting an Attorney from Testifying at a Client's Trial: An Ethical Paradox, 45 U. Cin. L. Rev. 268 (1976).Google Scholar
14 Formal Opinion 339 introduces this consideration with the qualifying phrase, “In some situations,” cites EC 5-9, and never mentions it again.Google Scholar
15 “Apparently, the object of this precept is to avoid putting a lawyer in the obviously embarrassing predicament of testifying and then having to argue the credibility and effect of his own testimony.” Galarowicz v. Ward, 119 Utah 611, 620, 230 P.2d 576, 580 (1951).Google Scholar
16 But see Sutton, supra note 13, which is apparently the source of this language.Google Scholar
17 6 Wigmore, supra note 13, at 597.Google Scholar
18 ABA Comm. on Professional Ethics, Opinions (1967).Google Scholar
19 Note, The Ethical Propriety of an Attorney's Testifying in Behalf of His Own Client, 38 Iowa L. Rev. 139, 146 (1952).Google Scholar
20 Sutton, supra note 13, at 482.Google Scholar
21 4 Dowl. & L. 393, 75 Rev. R. 881 (Q.B. 1846).Google Scholar
22 Id. at 394, 75 Rev. R. at 882.Google Scholar
23 Jacobs v. Weissinger, 211 Mich. 47, 49, 178 N.W. 65, 66 (1920). See also Rushton v. First Nat'l Bank, 244 Ark. 503, 516-17, 426 S.W.2d 378, 385 (1968); Inglett & Co. v. Everglades Fertilizer Co., 255 F.2d 342, 349 (5th Cir. 1958).Google Scholar
24 Kausgaard v. Endres, 126 Neb. 129, 131-32, 252 N.W. 810, 812 (1934).Google Scholar
25 13 Neb. L. Bull. 334, 336 (1935).Google Scholar
26 State v. Ryan, 137 Kan. 733, 737, 22 P.2d 418, 420 (1933).Google Scholar
27 Sutton, supra note 13, at 480.Google Scholar
28 See 48 Han'. L. Rev. 140 (1934).Google Scholar
29 Stones v. Byron, 4 Dowl. & L. 393, 75 Rev. R. 881 (Q.B. 1846); Kausgaard v. Endres, 126 Neb. 129, 131-32, 252 N.W. 810, 812 (1934). Cf. State v. Ryan, 137 Kan. 733, 737, 22 P.2d 418, 420 (1933); Rushton v. First Nat'l Bank, 244 Ark. 503, 426 S.W.2d 378 (1968).Google Scholar
30 E.g., In re Estate of Elvers, 48 Wis. 2d 17, 24, 179 N.W.2d 881, 885 (1970); United States v. Fiorillo, 376 F.2d 180, 185 (2d Cir. 1967); Food Fair Stores, New Castle, Inc. v. Howard, 58 Del. 558, 562-63, 212 A.2d 405, 408-09 (1965); Erwin M. Jennings Co. v. DiGenova, 107 Conn. 491, 499, 141 A. 866, 869 (1928). Contra, Millican v. Hunter, 73 So. 2d 58 (Fla. 1954).Google Scholar
31 6 Wigmore, supra note 13, at 601-602.Google Scholar
32 1 El. & Bl. 11, 12, 93 Rev. R. 1, 2 (Q.B. 1852).Google Scholar
33 Sutton, supra note 13, at 481.Google Scholar
34 Id. at 480.Google Scholar
35 Weil v. Weil, 283 App. Div. 33, 125 N.Y.S.2d 368 (1953).Google Scholar
36 Id. at 35, 125 N.Y.S.2d at 370.Google Scholar
37 Id. at 33, 125 N.Y.S.2d at 368. Now ABA Code of Professional Responsibility (1975) DR 7-106(c)(3), (4).Google Scholar
38 The Functions and Responsibilities of an Advocate, in 2 Association of the Bar of the City of New York, Benjamin N. Cardozo Memorial Lectures 1941-1970, at 631, 638 (1972).Google Scholar
39 “The personal credibility of counsel should be minimized as a factor in jury decision.” A. Leo Levin & Robert J. Levy, Persuading the Jury with Facts Not in Evidence: The Fiction-Science Spectrum, 105 U. Pa. L. Rev. 139, 155 (1956). Compare the following portion from the court's opinion in Weil v. Weil, 283 App. Div. 33, 35, 125 N.Y.S.2d 368, 370 (1953):Google Scholar
[B]y his taking the stand the lawyer staked his oath and his word against his client's adversary…. The record shows that the trial lawyer's word and his oath were in issue…. [T]he trial was not a fair one ….Google Scholar
40 The majority in Weil thought that was such a case. See the quotation from its opinion in note 39 supra. There were other grounds for reversal as well.Google Scholar
