For many attorneys, being compelled to testify in a case can be a stressful situation. Although litigators are generally familiar with courtroom procedure and the duty of candor, providing sworn testimony comes with additional risks and exposure that are typically not present when an attorney is acting only as an advocate. In some situations, if an attorney is a critical or material witness, the attorney could even be compelled to withdraw from the representation. Thus, attorneys providing testimony is typically not a simple matter.

There are many situations in which attorneys may be required to testify. They may receive a subpoena from a third party to testify in a deposition, administrative, or other court proceeding unrelated to an active matter. In another example, an adversary in litigation may employ discovery tools to call opposing counsel as a fact witness to the proceedings or underlying facts. Finally, in some cases, an attorney’s client may want their counsel to provide testimony to strengthen their defense, notwithstanding the impact such testimony could have on whether the attorney could be forced to withdraw.

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