In this post I examine the attorney witness rule incorporated in New
Jersey Rule of Professional Conduct (“RPC”) 3.7, and how the Rule can be
used to disqualify a lawyer representing a party in litigation when the
lawyer possesses factual knowledge of contested issues that go to the
heart of the case. Because courts generally are reluctant to disqualify
a party’s choice of counsel, a motion brought pursuant to RPC 3.7
requires the moving party to bear the burden of proof by demonstrating
that the attorney’s continued representation would violate the Rule. J.G. Ries & Sons, Inc. v. Spectraserv, Inc.,384 N.J. Super. 216 (App. Div. 2006).
RPC 3.7(a) states:
A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case;
(3) disqualification of the lawyer would work substantial hardship on the client.
R.P.C. 3.7 authorizes disqualification
of the client’s attorney only where that attorney’s trial testimony is
“necessary” and “likely.” A purpose of that limited remedy is to prevent
unfairness to the opposing party. See Michels, New Jersey Attorney Ethics,
comment 31:4-1(a) on R.P.C. 3.7 (2012). A mere representation of an
intent to call the attorney as a witness at trial is not sufficient, in
and of itself, to demonstrate such necessity and likelihood. See, e.g., J.G. Ries & Sons, Inc. v. Spectraserv, Inc., 384 N.J. Super. 216, 230 (App. Div. 2006). See also Main Events Prods. v. Lacy, 220 F.Supp.2d 353, 355 (D.N.J. 2002)(RPC 3.7(a) is a prohibition against an attorney-witness acting as an “advocate at trial.”).
For purposes of RPC 3.7, a witness is truly “necessary” if there are no
documents or other witnesses that can be used to introduce the relevant
The purpose of RPC 3.7(a) is “to prevent
a situation in which at trial a lawyer acts as an attorney and a
witness, creating the danger that the factfinder (particularly if it is a
jury) may confuse what is testimony and what is argument . . . .” Main Events Prods., 220 F.Supp.2d
at 357. An attorney is “likely to be a necessary witness only where he
has crucial information in his possession which may be divulged.” Garza v. McKelvey, No. 89-895, 1991 U.S. Dist. LEXIS 311, *6 (D.N.J. Jan. 2, 1991). If
the case may be “handled by any competent lawyer … it is appropriate
for [the attorney-witness] to withdraw.” Advisory Committee on
Professional Ethics, Opinion No. 630, 124 N.J.L.J. 906, 926 (quoting Advisory Committee on Professional Ethics Opinion No. 233, 95 N.J.L.J.
206 (1972)). Even when there is a question as to the materiality of the
lawyer’s testimony to the client’s case, “doubts should be resolved in
favor of the lawyer testifying and against his becoming or continuing as
an advocate.” Advisory Committee on Professional Ethics, Opinion No. 233, 95 N.J.L.J. 206-207, (1972) (quoting ABA Model Code of Professional Responsibility EC 5-10).
Historically, New Jersey Courts have
consistently held that RPC 3.7 begins to operate as soon as the attorney
knows or believes that he will be a witness at trial. See In the Matter of Cadillac V8-6-4 Class Action, 93 N.J.
412 (1983) (construing New Jersey DR 5-101 and DR 5-102). The
attorney-witness takes effect before an attorney decides to accept
employment from a client. Once an attorney recognizes that he is
“likely” to be a witness in litigation, he must choose whether he will
proceed as advocate or witness; he may not choose both. Id, at 440.
Generally speaking, motions to disqualify are viewed with disfavor as disqualification is a remedy with broad implications. See Kroungold v. Triester, 521 F.2d 763, 766 (3d Cir. 1975);Carlyle Towers Condo. Ass’n v. Crossland Sav., 944 F.Supp. 341, 345 (D.N.J. 1996); Spinello Cos. v. Metra Indus., No. 05-5075, 2006 U.S. Dist. LEXIS 41875 (D.N.J. June 22, 2006); Cavallaro v. Jamco Prop. Mgmt., 334 N.J. Super.
557, 572 (App. Div. 2000)(the disqualification of a client’s counsel is
considered a harsh remedy that should only be granted sparingly). The
party seeking disqualification bears the burden of showing that
continued representation by the lawyer would violate the disciplinary
In addition, the party seeking to
disqualify an attorney must do more than simply make representations
that a lawyer is a necessary witness for the attorney to be
disqualified. J.G. Ries & Sons, Inc. v. Spectraserv, Inc., supra, 384 N.J. Super.
at 230 (“Such a mere representation, however, does not satisfy the
threshold requirements of RPC 3.7, which specifies a likelihood that a
lawyer will be a necessary witness.”) Indeed, the party seeking to
disqualify must put forth evidence that establishes the likelihood that
the attorney will be a necessary witness at trial and if it is unclear
from the record as to whether or not the attorney’s testimony is
necessary, the motion should be denied. See Host Marriott Corp. v. Fast Food Operators, Inc., 891 F. Supp. 1002, 1010 (D.N.J. 1995).
Resolution of a motion to disqualify
requires the court to balance “the need to maintain the highest
standards of the [legal] profession” against “a client’s right to freely
choose his counsel.” Dewey v. R.J. Reynolds Tobacco Co., 109 N.J. 201,
205, (1988) (internal citation omitted). This balancing involves a
“painstaking analysis of the facts and precise application of
precedent.” Reardon v. Marlayne, Inc., 83 N.J. 460, 469 (1980); Dewey, 109 N.J. at 205. As
the New Jersey Supreme Court remarked, “[i]f there is any doubt as to
the propriety of an attorney’s representation of a client, such doubt
must be resolved in favor of disqualification.” Reardon, 83 N.J. at 471.
In a case filed in the Superior Court of New Jersey, Law Division, Bergen County
our firm recently succeeded in disqualifying a plaintiff’s lawyer based
on RPC 3.7. The incestuous nature of this case was such that the
plaintiff’s principals are the lawyer’s parents, and the lawyer is the
plaintiff’s Vice President. While serving as the company's Vice President, the lawyer prepared a financial prospectus
that was tendered to our clients in connection with a contemplated
purchase of the plaintiff’s business. Because of substantial
discrepancies in the financial prospectus, our client elected not to
proceed with the purchase. After taking over the case from our client’s
prior counsel, we successfully persuaded the Court that plaintiff’s
counsel was a likely and necessary trial witness who should be
disqualified under RPC 3.7 because he was the plaintiff’s point person
who negotiated the business terms of the transaction, communicated with
our client, and prepared the financial prospectus thus possessing direct
knowledge of issues that are central to our client’s affirmative
defenses. Click here
to read the trial judge’s order and opinion.
Labels: Disqualify counsel RPC 3.7 New Jersey, Disqualifying New Jersey Lawyer Witness Rule, Rule of Professional Conduct 3.7 Disqualifying Attorney Witness