Ala. R. Prof'l Conduct 3.7

(a) 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; or

(3) Disqualification of the lawyer would work substantial hardship on the

client.

(b) A lawyer may act as advocate in a trial in which another lawyer in the

lawyer's firm is likely to be called as a witness, unless precluded from doing so by Rule

1.7 or Rule 1.9.

Comment (As Amended Effective June 23, 2008)

Combining the roles of advocate and witness can prejudice the opposing party

and can involve a conflict of interest between the lawyer and client.

The tribunal has proper objection when the trier of fact may be confused or

misled by a lawyer serving as both an advocate and a 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.

To protect the tribunal, paragraph (a) prohibits a lawyer from simultaneously

serving as advocate and necessary witness except in those circumstances specified

in paragraphs (a)(1) through (a)(3). Paragraph (a)(1) recognizes that if the testimony

will be uncontested, the ambiguities in the dual role are purely theoretical. Paragraph

(a)(2) 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 lawyers

to testify avoids the need for a second trial with new counsel 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.

Apart from these two exceptions, paragraph (a)(3) recognizes that a balancing

is required between the interests of the client and those of the opposing party. Whether

the opposing party is likely to suffer prejudice depends on the nature of the case, the

importance and probable tenor of the lawyer's testimony, and the probability that the

lawyer's testimony will conflict with that of other witnesses. Even if there is risk of such

prejudice, in determining whether the lawyer should be disqualified due regard must

be given to the effect of disqualification on the lawyer's client. It is relevant that one or

both parties could reasonably foresee that the lawyer would probably be a witness.

The principle of imputed disqualification stated in Rule 1.10 has no application to this

aspect of the problem.

Whether the combination of roles involves an improper conflict of interest with

respect to the client is determined by Rule 1.7 or Rule 1.9. For example, if there is

likely to be substantial conflict between the testimony of the client and that of the

lawyer or a member of the lawyer's firm, the representation is improper. The problem

can arise whether the lawyer 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 lawyer involved. See Comment to Rule 1.7. If a lawyer who is

a member of a firm may not act as both advocate and witness by reason of conflict of

interest, Rule 1.10 disqualifies the firm also.

Comparison with Former Alabama Code of Professional Responsibility

DR 5-102(A) prohibited a lawyer, or the lawyer's firm, from serving as advocate

if the lawyer “learned or it is obvious that he or a lawyer in his firm ought to be called

as a witness on behalf of his client.” DR 5-102(B) provided that a lawyer, and the

lawyer's firm, may continue representation if the “lawyer learns or it is obvious that he

or a lawyer in his firm may be called as a witness other than on behalf of his client...

until it is apparent that his testimony is or may be prejudicial to his client.” DR 5-101(B)

permitted a lawyer to testify while representing a client: “(1) If the testimony will relate

solely to an uncontested matter; (2) If the testimony will relate solely to a matter of

formality and there is no reason to believe that substantial evidence will be offered in

opposition to the testimony; (3) If the testimony will relate solely to the nature and value

of legal services rendered in the case by the lawyer or his firm to the client; (4) As to

any matter if refusal would work a substantial hardship on the client because of the

distinctive value of the lawyer or his firm as counsel in the particular case.”

The exception stated in paragraph (a)(1) consolidates provisions of DR

5101(B)(1) and (2). Testimony relating to a formality, referred to in DR 5-101(B)(2), in

effect defined the phrase “uncontested issue,” and was redundant.