MRPC Rule 3.7

Michigan Rules of Professional Conduct 63 Updated with MSC order(s)

Michigan Rules of Professional Conduct 64 Updated with MSC order(s)

(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.

(c) Nothing in this rule prohibits a lawyer from appearing as attorney of record in a case in

which the lawyer is a party and is representing themselves.

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 opposing party may properly object 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.

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 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.