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.
Just as even the most prepared witness can fold under pressure and be subject to impeachment or accidental perjury, attorneys may make the same mistakes. Attorneys also face unique considerations in these situations. Those risks of exposure for an attorney often focus on the person or entity making the request. Whether it is a third party, client, or adversary that is seeking the attorney’s testimony will likely impact the appropriate measures to protect the attorney’s (and the client’s) interests.
Request for Testimony by a Third Party
Sometimes, an attorney will be called to testify as a fact witness in a case where the attorney is not currently providing representation. For many attorneys, such a situation is relatively low-risk. A common example is when an attorney is asked to testify concerning a business transaction in which they provided prior legal representation.
Even though these situations are less likely to create exposure for the attorney, most attorneys called by a third party to testify will still notify their firm’s in-house counsel of the request. Attorneys can also consider reaching out to the former client so that he or she can take the appropriate steps as well.
Because there are many types of third parties that may request an attorney’s testimony, e.g. law enforcement agencies, active litigants, or the government, there are unique circumstances that may govern every request. Thus, most attorneys called as third-party witnesses will give serious thought to retaining their own counsel to assist in preparing and defending the testimony.
Request for Testimony by a Client
A client may deem her attorney as the best witness to a specific issue. This scenario commonly occurs when a client needs to assert the defense that he or she was acting in accordance with the “advice of counsel.”
To be sure, many benefits can be derived from an attorney’s testimony on behalf of a client. But there are also risks. For one, when an attorney testifies regarding a client relationship in a judicial proceeding under oath, there is a risk that all privileges, including attorney-client and work product, may be waived. A skilled adversary, knowing this, may take advantage of the client’s desire to offer the attorney’s testimony and probe into matters that the client or attorney would not want brought to light. Thus, some attorneys in this situation may seek the client’s written consent indicating that they understand the risks of exposing the privilege.
Another risk is that, when attorneys testify or reasonably foresee that they will be called to testify to a material matter, they may be required to withdraw from the representation. This is typically governed by Connecticut Rule of Professional Conduct 3.7, which provides that a “lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness,” unless one of three exceptions are met. Those exceptions include when the testimony is “related to an uncontested issue” or when the disqualification “would work substantial hardship on the client.”
If the attorney does not withdraw, however, a court may nonetheless disqualify the attorney. If a client wants an attorney to testify, it may be helpful for the attorney to have a discussion with the client regarding the risk that the attorney will have to withdraw or could be disqualified.
Additionally, in some cases, an attorney’s testimony may create risk of exposure for the attorney or the firm. Indeed, if the attorney’s testimony could be used in another context to show a breach of ethical duty or other negligence, it may be deemed an admission under oath that can be wielded against the firm. Also, as noted above, an attorney’s testimony to privileged materials could create additional exposure for the client. If the client does not fully understand or appreciate this risk, they may seek to hold the attorney accountable for failing to explain it to them.
Request for Testimony by a Litigation Adversary
An aggressive litigation tactic is to seek opposing counsel’s deposition. Courts are typically skeptical of such requests, particularly when it is clear that the request for testimony is a mere litigation tactic, or otherwise aimed at harming the attorney’s client (rather than truly necessary for the case). However, there may be circumstances in which an attorney will be required to testify at a deposition or trial in an active matter.
If compelled to testify in an active matter by an adverse party, many attorneys will review whether they need to notify their professional liability insurer under mandatory reporting provisions. As discussed above, the compelled attorney and client may have to make some difficult decisions regarding whether the attorney can continue the representation and act as a witness.
Although attorneys generally face unique considerations from other witnesses when called to testify, careful consideration can help lead to a positive outcome for all involved.
Alanna G. Clair is a partner at Dentons in Washington, D.C., and focuses on professional liability defense. Shari L. Klevens is a partner at the firm in Atlanta and Washington, D.C., and serves on the firm’s U.S. board of directors. She represents and advises lawyers and insurers on complex claims and is co-chairwoman of Dentons’ global insurance sector team. Klevens and Clair are co-authors of “The Lawyer’s Handbook: Ethics Compliance and Claim Avoidance.”