Opinion 1227

The Committee considered your inquiry concerning actions that may be performed by a lawyer who would be a witness at a trial. The Committee was generally of the opinion that unless such conduct fell within one of the exclusions set out in RPC 3.7, the lawyer must decline to undertake the representation if it is apparent that the lawyer will be called as a witness by either side. If the representation is already underway, the lawyer must withdraw as soon as it becomes obvious that the lawyer will be called as a witness on the client's behalf.

In response to your specific questions, the Committee was of the opinion that a lawyer could not argue pre-trial motions to the court if the motion in any way dealt with or could be interpreted to deal with the lawyer's testimony as a witness. However, if the motion involved a purely legal question unrelated to the lawyer's testimony, then the Committee thought that would be in the nature of briefing, preparing court papers and attending settlement conferences, which would not be precluded by Rule 3.7.
The Committee was of the opinion that a lawyer who was a witness could not argue motions during trial outside the hearing of the jury, nor conduct examination of witnesses during the trial even if the lawyer did not argue the case to the jury.

Advisory Opinions are provided for the education of the Bar and reflect the opinion of the Committee on Professional Ethics (CPE) or its predecessors. Advisory Opinions are provided pursuant to the authorization granted by the Board of Governors, but are not individually approved by the Board and do not reflect the official position of the Bar association. Laws other than the Washington State Rules of Professional Conduct may apply to the inquiry. The Committee's answer does not include or opine about any other applicable law other than the meaning of the Rules of Professional Conduct.