The Advocate As Witness

Fordham Law Review
Volume 70 Issue 3 Article 10
2001
The Advocate as Witness: Understanding Context, Culture and

Client
Judith A. McMorrow
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Judith A. McMorrow, The Advocate as Witness: Understanding Context, Culture and Client, 70 Fordham L.
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The Advocate as Witness: Understanding Context, Culture and Client
Cover Page Footnote

Associate Professor, Boston College law School. My thanks to Marianna Putnam (BC Law '03), Amy
Leonard (BC Law '03), Solveig McShea (BC Law '02), and Michael McCormack (BC Law '00) for their
excellent research assistance, Reginald Alleyne, Thomas Kohler, John Cochran, Diane Cochran and Rick
Reilly for their insights into labor arbitration, and the many arbitrators and advocates that I cornered while
preparing this article. This article was made possible by the generous contributors to the Dean's Fund of
Boston College Law School, including Dr. Thomas Carney. Some of the research on federal court cases
draws from our work preparing McMorrow & Coquillette, The Federal Law of Attorney Conduct, in Moore's
Federal Practice (3d ed. 2001).
This article is available in Fordham Law Review: https://ir.lawnet.fordham.edu/flr/vol70/iss3/10

THE ADVOCATE AS WITNESS:
UNDERSTANDING CONTEXT, CULTURE AND
CLIENT
Judith A. McMorrow"
"How come they have to swear in the witness but not the Lawyer?"'
INTRODUCTION
Lawyers and clients have relationships. Courts and regulators

emphasize the fiduciary aspect of this bond: it is more than a joint
business venture or a contract.2 It is not so clear, however, that the
actual relationship that lawyers and clients forge receives heightened
protection by courts and regulators. Other important values bump up
against relationships. The need for evidence justifies impairing the
attorney-client relationship through expansive interpretations of
exceptions to the attorney-client privilege. Courts use high standards
of professionalism and loyalty obligations to justify severing long-
standing attorney-client relationships under the conflicts of interest
rules.' And the need for clear roles justifies interfering with long-
.Associate Professor, Boston College Law School. My thanks to Marianna Putnam
(BC Law '03), Amy Leonard (BC Law '03), Solveig McShea (BC Law '02), and
Michael McCormack (BC Law '00) for their excellent research assistance, Reginald
Alleyne, Thomas Kohler, John Cochran, Diane Cochran and Rick Reilly for their
insights into labor arbitration, and the many arbitrators and advocates that I cornered
while preparing this article. This article was made possible by the generous
contributors to the Dean's Fund of Boston College Law School, including Dr.
Thomas Carney. Some of the research on federal court cases draws from our work
preparing McMorrow & Coquillette, The Federal Law of Attorney Conduct, in
Moore's Federal Practice (3d ed. 2001).
1. This quote appeared as a caption to a cartoon, Laugh Parade, by Bunny
Hoest, in the September 16, 2001 issue of ParadeMagazine.
2. Westinghouse Elec. Corp. v. Kerr-McGee Corp., 580 F.2d 1311, 1317 (7th Cir.
1978) ("[Tlhe attorney is held to obligations to the client which go far beyond those of
an agent and beyond the principles of agency...."); Cinema 5, Ltd. v. Cinerama, Inc.,
528 F.2d 1384, 1386 (2d Cir. 1976) ("A lawyer's duty to his client is that of a fiduciary
or trustee."); Mindscape, Inc. v. Media Depot, Inc., 973 F. Supp. 1130, 1132 (N.D. Cal.
1997). See generally Scott FitzGibbon, Fiduciary Relationships Are Not Contracts, 82
Marq. L. Rev. 303 (1999).
3. See generally McMorrow & Coquillette, The Federal Law of Attorney
Conduct, in Moore's Federal Practice § 811.06 (3d ed. 2001) [hereinafter The Federal
Law ofAttorney Conduct].
4. See Bruce A. Green, Conflicts of Interest in Litigation: The Judicial Role, 65
Fordhamn L. Rev. 71 (1996).
FORDHAM LAW REVIEW [Vol. 70
standing relationships when a lawyer-advocate is needed as a witness
in a matter: the advocate-witness rule.
The advocate-witness concern arises because lawyers become
involved in the client's affairs in their status as lawyer. Lawyers may
know facts because they have been involved in the planning of a deal
or arrangement or the negotiation of a contract. They may know facts
because of investigations undertaken as part of the representation. 5
Lawyers may know process facts, such as what documents are
ascertainable from discovery. Lawyers routinely make assertions of
procedural and process facts and provide background information to
judges without running afoul of the advocate-witness rule.6 Lawyers
do not need to be sworn when asserting these process and background
facts because they have an ethical obligation not to make false
statements of fact or law to the judge.7 In these situations lawyers are
making representations of fact that will likely affect the procedural
presentation of the case, but do not go to the underlying merits.
When lawyers have become intertwined with the merits, however,
they begin to look more like a traditional fact witness. In these
circumstances, any factual statements that a lawyer makes should be
subject to the same vetting that all witnesses receive, including the
requirement that the witness be sworn and subject to cross-
examination. Once the lawyer moves into the realm of functioning as
both advocate and fact witness, distinct professional responsibility
issues arise.
The advocate-witness rule is an ethics rule of relatively recent
origin, but with deeper roots. Despite its recent vintage as a rule, it
has come to be the third most litigated ethics issue in federal court
practice, running behind only conflicts of interest and communication
with represented parties in importance.8 Commentators tend to be
quite skeptical of the rationale behind, and need for, the advocate-
witness rule. 9 But court opinions give more credence to the concept.
5. See generally Jeffrey A. Van Detta, Lawyers as Investigators: How Ellerth and
Faragher Reveal a Crisis of Ethics and Professionalism Through Trial Counsel
Disqualificationand Waivers of Privilegein Workplace HarassmentCases, 24 J. Legal
Prof. 261 (2000).
6. See John H. Garvey, The Attorney's Affidavit in Litigation Proceedings, 31
Stan. L. Rev. 191,203-18 (1979).
7. See Model Rules of Prof'l Conduct R. 3.3(a) (1983); The Federal Law of
Attorney Conduct, supra note 3, ch. 811. In answer to the query posed in the
introductory quote, see text accompanying note 1, the conventional view is that
lawyers are to present arguments, not facts. Consequently, lawyers generally do not
need to be sworn in as witnesses.
8. The FederalLaw of Attorney Conduct, supra note 3, § 802.20[1] (reporting that
from 1990-95 reported federal cases raising ethics issues most commonly dealt with
conflicts of interest (46%), communication with represented parties (10.6%) and
lawyer as witness (10.1%), according to a study by the Standing Committee on the
Rules of Practice and Procedure of the Federal Judicial Conference).
9. See generally Charles W. Wolfram, Modem Legal Ethics 376-78 (1986); Philip
K. Lyon & Bruce H. Phillips, Professional Responsibility in the Federal Courts:
20011 ADVOCATE AS WITNESS
The use of the advocate-witness rule raises many questions. How

does the rule operate in practice? Does a seemingly neutral rule of
professional responsibility-that the lawyer should not also serve as a
witness-have a disproportionate impact on lawyers and clients who
have developed a long-standing relationship, often the lawyer for a
family, small business or union? In other words, does this professional
responsibility rule have a larger impact on middle-income clients?
Are the concerns of the advocate-witness rule primarily ethical
concerns?
Like so many professional responsibility issues, the answer to these
queries is not ascertainable from reported court decisions or published
disciplinary actions. This rule is largely self-executing: lawyers
appear to recognize, whether because of rules or common sense, that
merging the role of advocate and witness is not typically a wise idea."'
The issue rarely serves as the basis of professional discipline from the
applicable state licensing body." Many lawyers appear unfamiliar
with the advocate-witness rule embodied in Model Rule of
Professional Conduct 3.7 (and state versions of this rule) and Model
Code of Professional Responsibility DR 5-102(A) and DR 5-101(B).12
More importantly, certain practice settings appear to have adapted
local practice to adjust to the reality that within their practice setting a
lawyer occasionally may need to serve as witness.13 Labor
arbitration, 4 patent practice, 5 child advocacy " and criminal practice"'
appear to be areas in which lawyers are more frequently needed as
Consistency is Cloaked in Confitsion, 50 Ark. L. Rev. 59, 63 (1997) (noting the -time-
honored principle that an attorney may not act as counsel in litigation in which the
attorney will be a material witness"). But see Van Detta, supra note 5,at 284.
10. United States v. Prantil, 764 F.2d 548, 553 (9th Cir. 1985) (rTherule envisions
that as soon as the dilemma is anticipated the attorney will promptly discharge his
ethical obligations by electing one of the two mutually exclusive paths that lie before
him."); Borman v. Borman, 393 N.E.2d 847, 856 (Mass. 1979) ("We therefore take
this opportunity to state that first and foremost, the code is self-executing."); see also
infra Part I.D.
11. See generally Wolfram, supra note 9, § 7-5.1 (noting that professional discipline
is "infrequently imposed and rarely severe").
12. See, e.g., United States ex rel Hanrahan v. Thieret. 695 F. Supp. 372,394 (N.D.
Ill. 1988) ("[L]avyer-disqualification motions before this Court and in the reported
cases reveal that all too many lawyers are unaware of the demands of the Disciplinary
Rules that incorporate and implement the advocate-witness rule." (emphasis in
original)).
13. For example, litigators are encouraged to conduct witness interviews in the
presence of a third party, who can be called if necessary to impeach the witness. See
Wolfram, supra note 9, § 12.4.1.
14. See infra Part II.
15. See infra note 46 and accompanying text.
16. See generally Ann M. Haralambie, The Role of the Child's Attorney in
Protectingthe Child Throughout the Litigation Process, 71 N.D. L Rev. 939, 948 nA3
(1995).
17. In criminal matters, the practice of serving a subpoena on defense counsel has
risen dramatically in recent years. The Federal Law of Attorney Conduct, supra note
3, § 813.04[1][b].
witnesses. When the issue comes to the attention of adjudicatory

bodies, the ultimate treatment appears to differ based on how the
issue is framed, the practice setting in which it arises, and the forum in
which the issue is litigated.
To better understand how the rule operates, I chose three bodies of
information to examine: published federal court opinions interpreting
the advocate-witness rule, the approach of one state (Massachusetts)
and labor arbitration. Because of a dearth of formal references to
advocate-witness issues in labor arbitration, I conducted interviews
with a selection of labor arbitrators or advocates (both union and
management) to obtain a picture of the practice options that this legal
community has used to deal with the advocate-witness phenomenon. 8
What emerged from this review is a fascinating picture of the
advocate-witness rule as a chameleon rule. Like a handful of other
ethics rules, the advocate-witness rule operates like an ethics rule in
some contexts, seeking to guide a lawyer toward right behavior. In
other contexts, it operates like a rule of procedure to help determine
how to proceed with the case and present evidence in a manner fair to
both sides. In yet other circumstances, the rule more closely
resembles an evidentiary principle, in which it helps inform whether
the evidence will be allowed. Ethics-procedure-evidence are a
familiar triumvirate in legal ethics, and the values behind them
intersect in other areas, including the attorney-client privilege, duties
to present issues well grounded in fact or law, and discovery
obligations. What determines whether the rule operates (or ought to
operate) like an ethics rule, a procedure rule or an evidentiary
concern appears to turn on several broad variables: the context
(formal or informal, public or private) in which the issue arises, the
legal culture in which it appears (levels of trust, etc.), and the nature
of the client. 9
The adaptability of the advocate-witness rule to the particular
context, culture and client also demonstrates that some legal contexts
give greater protection to the attorney-client relationship. As the
review below indicates, labor arbitration is significantly more tolerant
of dual functioning as both advocate and witness, treating the issue as
largely a procedural concern, so that fewer clients are separated from
their counsel of choice. Labor arbitration is also a significant source of
access to justice for many middle-class, and aspiring middle-class,
workers. At least in the context of labor arbitration, the advocate-
witness rule bends to give greater protection to middle-income clients.
18. See infra Part II.B.

19. As one court noted, "these matters are fact-specific in the extreme, and can
only be resolved on a case-by-case basis." ABS MB Inv. Ltd. v. IVAX Corp., No.
CIV.A.94-1923, 1996 U.S. Dist. LEXIS 4502, at *10 (D. Md. Apr. 10, 1996)
(designated not for publication).
2001] ADVOCATE AS WITNESS
It is true that this chameleon rule is untidy and sometimes appears

to lack coherence.2 The advocate-witness rule is grounded in
multiple policy concerns that appear inconsistent because different
contexts raise different policy concerns. The application of the rule is
subject to some criticism. Bad decisions can flow from an unduly
wooden application of the rule.2' From this review it appears that
federal courts could be more respectful of-give more weight to-the
reality of a strong attorney-client relationship, without going as far as
labor arbitration. But perhaps chameleon rules have, like their
namesakes, found the correct technique for adapting to the
surrounding situation.
I. ORIGINS OF THE ADVOCATE-WITNESS RULE AND JUDICIAL
IMPLEMENTATION
A. Early and Modern JudicialArticulations: Evidentiary and

ProceduralConcerns
The 1535 trial of Sir Thomas More provided one of the earliest
examples of the troublesome practice of serving as both advocate and
witness. The Solicitor-General Richard Rich, who was assisting
Attorney General Sir Christopher Hale in the prosecution,
unexpectedly took the stand to help bolster the prosecution's case by
testifying that Thomas More had made traitorous comments to him in
a conversation that took place in the Tower of London.-" Later
nineteenth-century historical accounts were highly critical of this act.
"[T]he judges were in dismay-the Attorney-General stood aghast-
when Mr. Solicitor, to his eternal disgrace, and to the eternal disgrace
of the Court who permitted such an outrage on decency, left the bar,
and presented himself as a witness for the Crown."' Mr. Rich
20. Cf Christopher Slobogin & Amy Mashburn, The Criminal Defense Laivver's
Fiduciary Duty to Clients With Mental Disability. 68 Fordham L Rev. 1581. 1618
(2000) (suggesting use of arguably inconsistent theories of advocacy versus best
interests approaches when dealing with mentally disabled clients "accommodates the
reality that a combination of inconsistent theories may produce the most workable
conceptualization of the lawyer's role and may be more descriptively accurate of the
approach used by most lawyers").
21. Wolfram, supra note 9. § 7.5.2 (1986) (discussing effect of rule in '*clumsy
judicial hands").
22- See generally Peter Ackroyd. The Life of Thomas More 349 (1998). R. W.
Chambers, Thomas More 337 (1936); E.E. Reynolds, Saint Thomas More 334 (1954).
Some previous descriptions of this trial incorrectly state that it was Sir Thomas More's
attorney who testified against him. See, e.g., Erik G. Luna, Avoiding a "Carnival
Atmosphere": Trial Court Discretion and the Advocate-Witness Rule, 18 Whittier L
Rev. 447, 453 (1997); Note, The Advocate-Witness Rule: If Z, then X. But Why?, 52
N.Y.U. L. Rev. 1365, 1368 (1977).
23. 2 John Lord Campbell, Lives of the Lord Chancellors and Keepers of the
Great Seal of England: From the Earliest Times Till the Reign of King George IV 61
(4th ed. 1856) [hereinafter Lives of the Lord Chancellors]; see also Ackroyd, supra
returned from the stand to the counsel table and called two additional
witnesses to attempt, unsuccessfully, to corroborate his own
testimony. 4 The accounts of Sir Thomas More's withering response
brought the assistant prosecutor's credibility directly into question.
"In good faith, Mr. Rich, I am more sorry for your perjury than for
mine own peril." z Long acquainted with Mr. Rich, Sir Thomas More
reportedly stated he was "sorry you compel me to speak it," that Mr.
Rich was "always esteemed very light of [his] tongue, a great dicer and
gamester." Why would Sir Thomas More confide the secrets of his
conscience to "a man always reputed of me for one of so little truth
and honesty." 6 Obviously, this was a trial that has historically been
treated as a sham, so the act of the prosecutor serving as a witness
against the defendant was one of only many outrages to a modern
mind. But by the nineteenth century, the dual role of prosecutor and
witness was condemned for putting the advocate's credibility directly
at issue.
Seeds of the advocate-witness concern also began appearing in
American court decisions in the nineteenth century as courts
expressed their discomfort with lawyers serving as both advocate and
witness. This "highly indecent practice"27 subjects the lawyer to "just
reprehension."' Even in cases in which the lawyer has a duty to
testify, "they necessarily cause great pain to counsel of the right
spirit."2 9 Courts seemed uncomfortable with relying on counsel's
testimony.30
Whatever rhetorical condemnation courts gave the practice, the
early judicial references to advocates serving as witnesses framed the
issue in evidentiary terms, addressing whether counsel was a
competent witness. In 1886, the U.S. Supreme Court addressed the
note 22, at 380.

24. The witnesses, Sir Richard Southwell and Mr. Palmer, reported that "they
were so busy in trussing up the books in a sack, they gave no ear to the conversation"
that supposedly incriminated Sir Thomas More. Lives of the Lord Chancellors,supra
note 23, at 62.
25. Id. at 61.
26. Id. at 62.
27. Frear v. Drinker, 8 Pa. 520, 521 (1848).
It is said, and I agree, that it is a highly indecent practice for an attorney to
cross-examine witnesses, address the jury, and give evidence himself to
contradict the witness. It is a practice which, as far as possible, should be
discountenanced by courts and counsel.... It is sometimes indispensable
that an attorney, to prevent injustice, should give evidence for his client. It,
however, leads to abuse, of which I have seen several examples, but at the
same time I know of no law to prevent it.
Id.
28. Potter v. Ware, 55 Mass. 519, 524 (1848).
29. Id.
30. Richardson v. Eldridge, 20 F. Cas. 708, 708-09 (S.D.N.Y. 1851) ("[The court)
would strongly discountenance proctors being used as witnesses to prove the case of
their clients, and is always reluctant to decree upon their testimony alone.").
issue in French v. Hall, in which it strongly stated that "[t]here is

nothing in the policy of the law, as there is no positive enactment,
which hinders the attorney of a party prosecuting or defending in a
civil action from testifying at the call of his client." -" The Court uses
policy in a narrow sense, functionally distinguishing policy from
propriety, noting that "[i]n some cases it may be unseemly, especially
if counsel is in a position to comment on his own testimony, and the
practice, therefore, may very properly be discouraged."p Yet, it may
also "be quite important, if not necessary, that the testimony should
be admitted to prevent injustice or to redress wrong.' ' 3
French v. Hall represents a classic example of an advocate-witness
situation. The defendant testified that he had told no one that he had
promised to pay plaintiff $5,000.- Plaintiff wished to offer his counsel
as a rebuttal witness to testify that the defendant had told counsel of
the promise.35 The trial court sua sponte refused to allow the evidence
because the proposed witness was acting as counsel for plaintiff.- The
trial court would later deny a motion for a new trial on a new theory:
plaintiff's counsel knew that his testimony would be needed and erred
in failing to give the evidence in the case in chief. The Supreme
Court reversed and remanded for a new trial because of the "illegal"
ground of denying admission of the testimony because the witness was
also an advocate in the case. - By refusing to treat the advocate-
-witness concern as a bar to testimony-an evidentiary ruling-the
Court acknowledged the balancing of values inherent in the inquiry,
particularly where the evidence is offered by the party whose lawyer is
to testify. The balance weighed strongly in favor of admitting the
testimony.
The Court's use of language is also interesting. It states that
"plaintiff' wished to call the witness, but we can infer that it was
plaintiffs counsel who wished to call himself. Yet by using "role"
language, the Court could transform a seemingly direct request ("Let
me testify.") into a person speaking at the behest of another ("My
client asks that I testify."). While evidence and etiquette appear to be
the dominant concerns in French v. Hall, the role concerns would
continue to lurk in the background.
The idea that the advocate-witness concern is more often present
when a lawyer seeks to appear as a witness "for his client" resonates
31. French v. Hall, 119 U.S. 152, 154 (1886). As Professor Jeffrey Van Detta
notes, this emphasis on the absence of a positive enactment could be read as an
invitation for professional regulation. See Van Detta, supra note 5, at 275.
32. French, 119 U.S. at 154.
33. Id. at 154-55.
34. Id. at 153-54.
35. Id. at 154.
36. Id.
37. Id. at 154-55.
38. Id. at 155.
in the 1908 Canons of Ethics, which in turn drew its language from the
1887 Alabama State Bar Association Code. 39 ABA Canon of Ethics
19 states that:
When a lawyer is a witness for his client, except as to merely formal
matters, such as the attestation or custody of an instrument and the
like, he should leave the trial of the case to other counsel. Except
when essential to the ends of justice,
40 a lawyer should avoid testifying
in court in behalf of his client.
The Canon 19 approach attempts to codify instances in which
testimony would be allowed: merely formal matters and the huge
catchall of "ends of justice." The Canons did not address the
circumstances in which a lawyer might be required to testify against
the client, presumably because such circumstances would also likely
involve conflict of interest concerns.
Prior to the 1970s, the federal and Massachusetts court treatment of
the advocate-witness issue paralleled the concerns of French v. Hall
and Canon 19. The few courts that addressed advocate-witness issues
focused not on whether to disqualify counsel, a remedy designed to
correct presumably unethical conduct, but on whether to allow
counsel to serve as a witness, an evidentiary concern.4 Out of
eighteen federal court cases prior to 1970, nine courts allowed the
testimony,4" eight rejected the testimony,4 3 and one found the issue to
be unripe (but would have allowed the testimony).' While the
numbers suggest that courts were equally balanced between allowing
and prohibiting the testimony, it appears that courts generally allowed
the testimony as long as the apparent motive was to provide testimony
39. See H. Drinker, Legal Ethics app. F (1953). The 1887 Alabama Code, which is
contained in Appendix F of Drinker's book, has some small differences in language.
Of most interest, the Alabama Code stated that an attorney "should scrupulously
avoid" testifying on behalf of his client. The "scrupulous" emphasis was dropped in
the ABA Canons.
40. Canons of Prof'l Ethics Canon 19 (1908).
41. See also ABA Comm. on Prof 1Ethics and Grievances, Formal Op. 50 (Dec.
14, 1931).
42. Bank of America v. Saville, 416 F.2d 265, 272 (7th Cir. 1969); United States v.
Fiorillo, 376 F.2d 180, 185 (2d Cir. 1967); Laughner v. United States, 373 F.2d 326, 327
(5th Cir. 1967); United Parts Mfg. Co. v. Lee Motor Prod., Inc., 266 F.2d 20, 24 (6th
Cir. 1959); Walker v. Bailey, 245 F.2d 486, 490 (C.C.P.A. 1957); Davis v. Aznar, 37
F.R.D. 223, 225 (D. Md. 1965); Irvin v. Dowd, 153 F. Supp. 531, 539 (N.D. Ind. 1957),
rev'd on other grounds, 359 U.S. 394 (1959); Am. Securit Co. v. Shatterproof Glass
Corp., 154 F. Supp. 890, 893 (D. Del. 1957); Sears, Roebuck & Co. v. Am. Plumbing
& Supply Co. of Green Bay, 19 F.R.D. 329,332 (E.D. Wis. 1954).
43. Loeb v. Hammond, 407 F.2d 779, 781 (7th Cir. 1969); Travelers Ins. Co. v.
Dykes, 395 F.2d 747, 748-49 (5th Cir. 1968); Gajewski v. United States, 321 F.2d 261,
269 (8th Cir. 1963); United States v. Clancy, 276 F.2d 617, 636 (7th Cir. 1960), rev'd on
other grounds, 365 U.S. 312 (1961); Lau Ah Yew v. Dulles, 257 F.2d 744, 746-47 (9th
Cir. 1958); United States v. Alu, 246 F.2d 29, 34 (2d Cir. 1957); United States v.
Chiarella, 184 F.2d 903, 911 (2d Cir. 1950), vacated on other grounds, 341 U.S. 946
(1951); Welcher v. United States, 14 F.R.D. 235, 238 (E.D. Ark. 1953).
44. United States v. Maloney, 241 F. Supp. 49, 50 (W.D. Pa. 1965).
that could not be easily obtained elsewhere. Courts noted that the
practice of serving as both counsel and witness is of "doubtful
propriety" and the ordinary practice is to withdraw as counsel before
testifying.45 The issue of advocate testimony appeared to be
particularly common in patent cases, with the courts demonstrating
considerable leniency in allowing the testimony.' Courts disallowed
testimony for a variety of traditional evidentiary or procedural
reasons: because it incorporated secondary statements;47 because
counsel was not listed on the pretrial list of witnesses; 5 or because the
attorney was attempting to testify as an expert witness on an issue to
be decided by the judge and jury. 9 The early Massachusetts cases
followed a similar pattern, treating advocate-witness inquiries
primarily as an evidentiary concern.'
In the occasional case in which the advocate's testimony was sought
by opposing counsel, a frequent starting point for the analysis was
whether the testimony is covered by the attorney-client privilege,
again an evidentiary question. If the evidence is not privileged, then
the propriety of testifying was typically addressed as an issue of ethics,
to be left to the conscience of the attorney.-
The early judicial treatment of advocate-witness concerns
demonstrates a common understanding of ethics as a private concern.
As the Supreme Court suggested in 1887, ethics is not "the policy of
45. Sears, Roebuck & Co., 19 F.R.D. at 332; Welcher, 14 F.R.D. at 238 (finding
practice of counsel offering themselves as witness "too easily proceeds towards the
perversion of the attorney's office and ought steadfastly to be frowned upon," and
attorney affidavit that incorporated secondary statements not sufficient to satisfy
summary judgment standard).
46. See, e.g., United Parts Mfg. Co., 266 F.2d at 24 (admitting counsel's unsworn
explanation as to prior art after expert witness disallowed and waiving failure to
administer oath because opposing counsel failed to object); Walker, 245 F.2d at 490
(allowing testimony and explaining that "[t]he testimony of the patent attorney who
prepared an application is ordinarily accepted as to the circumstances surrounding its
preparation, and in many cases it would be difficult or impossible to make a
satisfactory showing of diligence in preparing and filing an application by any other
means"); Am. Securit Co., 154 F. Supp. at 893 (finding attorney competent to testify).
47. Welcher, 14 F.R.D. at 238 (holding attorney affidavit that incorporated
secondary statements not sufficient to satisfy summary judgment standard).
48. Travelers Ins. Co., 395 F.2d at 748.
49. Loeb v. Hammond, 407 F.2d 779,781 (7th Cir. 1969).
50. We found only two Massachusetts cases on the advocate-witness concern prior
to 1970, and both treated the issue as an evidentiary and etiquette concern. Holbrook
v. Seagrave, 116 N.E. 889, 890 (Mass. 1917) ("While such a practice by an attorney is
not to be commended, it was within the discretion of the court to permit the
[attorney] to testify."); Potter v. Ware, 55 Mass. 519, 524 (1848) (stating that while it is
rare that counsel can testify for a client without dishonor, until the rules of evidence
are changed, a witness will not be excluded merely because he is testifying on behalf
of his client).
51. See, e.g., Sears, Roebuck & Co. v. Am. Plumbing & Supply Co. of Green Bay,
19 F.R.D. 329,331 (E.D. Wis. 1954) (quoting at length from Corpus Juris).
52- Id. at 332 (quoting 70 C.J. 175-78).
the law" but a private matter, not properly the sphere of the courts."
Whether to testify is a question of legal ethics, which is left to the
lawyer's "own conscience."54 This is not to suggest that courts did not
act upon ethical violations prior to the movement toward codes and
rules of ethics. Even under the Canons courts would occasionally
disqualify counsel for conflicts of interest.55 Advocate-witness issues,
at least, were seen as subject to limited oversight by the courts.
During the period before the Model Code, federal courts also began
to see procedural dimensions to the advocate-witness issue. Concern
about a lawyer being required to testify was a significant focus of the
appellate court's decision in Hickman v. Taylor to protect attorney
work product. 6 The Supreme Court's majority opinion in Hickman
viewed the advocate-witness as a practice to be discouraged. Justice
Jackson's concurring opinion also expressed concern that the
attorney's credibility might be placed in issue if the attorney's notes
were subject to production. The values behind the advocate-witness
concern were helping to shape the Court's creation of a work product
privilege.
B. The Model Code and Model Rules Articulation Through a Judicial
Lens
1. The Model Code Approach

The 1973 Model Code of Professional Responsibility articulated a
much more detailed advocate-witness rule and marked the change of
53. French v. Hall, 119 U.S. 152, 154 (1886); see also Cox v. Kee, 186 N.W. 974,
975 (Neb. 1922) (quoting 4 Jones, Commentaries on Evidence § 754, which states that
an attorney testifying at the call of the client "is a matter which should appeal to the
professional pride of an attorney and his sense of his true position and duty"); State v.
Lee, 28 S.E.2d 402, 404 (S.C. 1943) ("In the final analysis, the rule seems to be that
the question of whether an attorney should testify in a case with which he is
professionally connected is one of legal ethics, resting largely with his own
conscience.").
54. Lee, 28 S.E.2d at 404.
55. See, e.g., Chugach Elec. Ass'n v. United States District Court, 370 F.2d 441,
442 (9th Cir. 1966); T.C. Theatre Corp. v. Warner Bros. Pictures, 113 F. Supp. 265,
271 (S.D.N.Y. 1953).
56. Hickman v. Taylor, 153 F.2d 212, 220 (3d Cir. 1945), affd on other grounds,
329 U.S. 495 (1947).
57. Hickman v. Taylor, 329 U.S. 495, 513 (1947). The Court reasoned that
requiring the attorney to disclose what witnesses have said
forces the attorney to testify as to what he remembers or what he saw fit to
write down regarding witnesses' remarks. Such testimony could not qualify
as evidence; and to use it for impeachment or corroborative purposes would
make the attorney much less an officer of the court and much more an
ordinary witness. The standards of the profession would thereby suffer.
Id.
58. Id. at 516-17 (Jackson, J., concurring).
judicial treatment of this practice.59 The movement toward rule

enactments gave federal courts new tools with which to think about
attorney conduct issues. Rules also gave opposing counsel new
vehicles to consider in implementing a litigation strategy. The
advocate-witness rule is a classic example of this process. The Model
Code drafters elected to put in two -distinct provisions to govern
advocate-witnesses. DR 5-101(B) provides that a lawyer shall not
accept employment "if he knows or it is obvious that he or a lawyer in
his firm ought to be called as a witness," with four exceptions:
(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.60
The Model Code was trying to legislate when justice may require the
attorney's testimony. But the drafters obviously concluded that they
needed a flexible catch-all category of "substantial hardship." As
noted below, the power of this exception is diminished by the narrow
interpretation given to this phrase.
DR 5-102(A) governs withdrawal from ongoing litigation and
distinguishes between situations in which the lawyer seeks to testify
on behalf of the client and when the lawyer's testimony is sought by
opposing counsel. 61 DR 5-102(A) provides that a lawyer should
withdraw when the lawyer "learns or it is obvious that he or a lawyer
in his firm ought to be called as a witness on behalf of his client"
unless the exceptions above apply.62 DR 5-102(B) provides that when
a 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, he may continue
the representation until it is apparent that his testimony is or may be
prejudicial to his client."63 Presumably, the lawyer would not
59. Consequently, pre-Code federal cases that allowed the attorney to serve as
both advocate and witness may be subject to question. See, e.g., United States v.
Peng, 602 F. Supp. 298, 302 (S.D.N.Y. 1985) (suggesting that pre-Code cases that
allowed attorney to serve as both advocate and witness had been overruled); see also
Jeffrey A. Stonerock, The Advocate-Witness Rule: Anachronism or Necessary
Restraint?,94 Dick. L. Rev. 821, 821 (1990) ("The rule is over 150 years old, but most
of the cases and commentary discussing it originate within the past 30 years.").
60. Model Code of Prof'l Responsibility DR 5-101(B) (1980).
61. Id DR 5-101(A).
62. Id.
63. DR 5-101(B).
voluntarily testify for one's own client if the testimony were

prejudicial. Because prejudice is the only factor considered when the
opposing counsel seeks the testimony, the rule indirectly makes
conflict of interest concerns the only variable in these circumstances.,
Writing with broad strokes, the Ethical Considerations
accompanying the Model Code also gave more detailed policy
justifications for the advocate-witness rule.' Unfortunately, the
Model Code simply listed the concerns, failing to make clear that
different factual settings may raise different concerns. Serving as both
counsel and witness, it said, makes the lawyer "more easily
impeachable for interest and thus be a less effective witness"' -
reflecting the evidentiary dimension of the advocate-witness rule. By
testifying, a lawyer handicaps opposing counsel who attempts to
challenge the credibility of the advocate-witness, raising a question of
possible prejudice to opposing counsel.67 This appears to be primarily
a procedural concern. The advocate who is also a witness "is in the
unseemly and ineffective position of arguing his own credibility" 6 -
raising a question both of etiquette and possible impairment of the
obligation of competence that a lawyer owes a client. In sum, the role
of advocate and witness "are inconsistent: the function of an advocate
is to advance or argue the cause of another, while that of a witness is
to state facts objectively. '69 This cluster of policy justifications comes
across as a jumble of concerns, but they reflect four distinct themes:
(1) role confusion that occurs both to the fact-finder and individual
attorney; (2) institutional concerns that flow from role confusion,
including possible impaired confidence in the outcome of a trial in
which roles have been blurred; (3) conflict concerns that the lawyer's
judgment or performance will be impaired to the detriment of the
client; and (4) possible prejudice to the opposing party.
This multi-pronged approach of the Model Code gave significantly
more detailed guidance to courts, and courts in turn took up the
invitation to reconceptualize advocate-witness issues as primarily an
ethics concern rather than an evidentiary matter. A Judicial
Conference study of published federal court cases from 1990 to 1995
found that while conflicts of interest represented the most frequently
litigated issue (204 cases, or 46% of all ethics-related cases), two other
issues received significant attention in federal court: communication
with represented parties was raised in 47 cases (10.6%) and advocate-
witness issues were raised in 45 cases (10.1%).70
64. For this reason, some commentators categorize the advocate-witness rule as a
subset of conflicts of interest. See, e.g., Green, supra note 4, at 71 n.4.
65. Model Code of Prof'l Responsibility EC 5-9.
66. Id.
67. Id.
68. Id.
69. Id.
70. Daniel R. Coquillette, Study of Recent Federal Cases (1990-1995) Involving
While the Model Code's advocate-witness rules disfavor serving as

both an advocate and witness, the rules do provide exceptions. 7 The
first three exceptions have received relatively little attention.- The
substantial hardship exception has been more frequently litigated and
has generally been narrowly construed by the courts.' Mere expense
and delay are not sufficient to demonstrate substantial hardship.74
Some courts allow substantial hardship to be applied only when the
potential for disqualification was not known to the parties in
advance.75 Most importantly for this discussion, severing a long-
standing relationship is typically not sufficient to demonstrate a
substantial hardship.76
Reconceptualizing the advocate-witness concern as an ethical issue
also opened the door to a powerful derivative consequence: imputed
disqualification. The Model Code expressly extends the bar to
representation under 'the advocate-witness rule to both a lawyer and
"a lawyer in his firm." The Model Code had no provision for client
waiver, so a client could find his or her lawyer and the law firm
disqualified, with the accompanying cost, delay and psychological and
tactical disruption, even though the client wished to retain that
relationship.78
Although federal courts often stated that they were influenced by
or following the Model Code, some federal courts elected not to
Rules of Attorney Conduct, for Committee on Rules of Practice and Procedure 3-4
(Federal Judicial Conference of the United States, Working Paper, Dec. 1. 1995)
(reporting results of study conducted by the reporter for the Committee on Rules of
Practice and Procedure of the Judicial Conference of the United States).
71. DR 5-101(B).
72. See The Federal Law of Attorney Conduct, supra note 3, § 812.0313]; see also
Mailer v. Mailer, 439 N.E.2d 811, 814 & n.7 (Mass. 1982) (allowing attorney to testify
where the credibility of the attorney was not at issue and the testimony would not
bear on any disputed issue); Borman v. Borman, 393 N.E.2d 847, 856 (Mass. 1979);
Bernier v. DuPont, 715 N.E.2d 442, 448 (Mass. App. Ct. 1999) (finding counsel to the
executrix of an estate should have been allowed to testify about his fees in a probate
proceeding and remanding on that issue).
73. See, e.g., United States v. Johnston, 690 F.2d 638, 642 n.9 (7th Cir. 1982)
(noting substantial hardship has been given "a very narrow reading"); Wickes v.
Ward, 706 F. Supp. 290,293 (S.D.N.Y. 1989); United States v. Peng, 602 F. Supp. 298,
303 (S.D.N.Y.), affd, 766 F.2d 82 (2d Cir. 1985); MacArthur v. Bank of N.Y., 524 F.
Supp. 1205,1210 (S.D.N.Y. 1981).
74. Kalmanovitz v. G. Heileman Brewing Co., 610 F. Supp. 1319, 1326 (D. Del.
1985); Teleprompter of Erie, Inc. v. City of Erie, 573 F. Supp. 963, 966 (W.D. Pa.
1983); see also Steven C. Waterfield, 155 North High, Ltd. v. Cincinnati Insurance
Co.: The Advocate-Witness Rule-Trying to Define Substantial Hardship in DR 5-
101(B)(4), 57 Ohio St. L.J. 1027 (1996).
75. See, e.g., Gen. Mill Supply Co. v. SCA Serv., Inc., 697 F.2d 704, 713 (6th Cir.
1982); Jones v. City of Chicago, 610 F. Supp. 350,361 (N.D. I11.
1984).
76. See infra Part I.E.3.
77. Model Code of Prof'l Responsibility DR 5-101, 5-102 (1980).
78. California takes a more relaxed approach, allowing waiver. See Cal. Rules of
Prof'l Conduct R. 5-210(C) (1995), available at http'Jlwww.calbar.orgpub250l
s0036.htm; Van Detta, supra note 5, at 296-97.
follow the imputed disqualification provisions.7 9 Other courts did

impute disqualification, typically in cases in which the lawyer was
integrally involved in the underlying factual setting and likely to be
not just a necessary witness, but an essential one whose credibility was
directly on the line. These were often circumstances in which courts
found substantial prejudice if the firm continued to represent the
client, which typically were circumstances in which a conflict was also
likely to be found.8"
2. The Model Rules: Loosening the Grip
The 1983 Model Rules of Professional Conduct loosened the grip of
the advocate-witness rule. Model Rule 3.7(a) states that "[a] lawyer
shall not act as advocate at a trial in which the lawyer is likely to be a
necessary witness" except where three exceptions, which paralleled
the exceptions above, are met.8 Incorporating a standard of
"necessary witness" brought the evidentiary roots more clearly into
focus again. This standard also brought the ethics rule more closely in
line with the work product protection of Hickman v. Taylor, which
protects attorney work product absent a showing of necessity or
justification by the opposing counsel.' The Model Rules continued
the exceptions of the Model Code, collapsing the first two exceptions
into a single category that "the testimony relates to an uncontested
issue."83 The substantial hardship prong was also changed in one
important respect. It simply became that "disqualification of the
lawyer would work substantial hardship on the client"8" and did not
expressly link hardship to the distinctive value of the lawyer or his
79. See, e.g., FDIC v. United States Fire Ins. Co., 50 F.3d 1304 (5th Cir. 1995)
Tisby v. Buffalo Gen. Hosp., 157 F.R.D. 157, 166 (W.D.N.Y. 1994) (concluding under
New York Code, which uses Model Code language, that rules did not require
automatic disqualification of attorney's law firm in proceeding before court); Parke-
Hayden, Inc. v. Loews Theatre Mgmt. Corp., 794 F. Supp. 525, 527 (S.D.N.Y. 1992);
FDIC v. Frazier, 637 F. Supp. 77, 81 (D. Kan. 1986) (refusing to disqualify firm of
testifying attorney despite language of Model Code); Gen. Mill Supply Co. v. SCA
Services, Inc, 505 F. Supp. 1093, 1096 (E.D. Mich 1981) ("[Cjase law demonstrates
that courts are unwilling to strictly apply DR 5-101 and 5-102 in the case of the
lawyer-witness, and particularly in the case of the law firm witness."). But see
Personalized Mass Media Corp. v. Weather Channel, 899 F. Supp. 239, 244 (E.D. Va.
1995) (following Virginia rules, imputing disqualification to both patent attorney and
firm because attorney's knowledge was relevant, necessary and prejudicial).
80. See, e.g., Lamborn v. Dittmer, 873 F.2d 522, 531 (2d Cir. 1989); Tisby, 157
F.R.D. at 166; Gen. Mill Supply Co., 505 F. Supp. at 1098 (holding disqualification of
firm appropriate where "the credibility of the entire law firm would be at issue
through every twist and turn of the trial"); Freeman v. Kulicke & Soffa Indus., Inc.,
449 F. Supp. 974, 978 (E.D. Pa. 1978) (denying imputed disqualification where
movant could demonstrate only a "vague and incidental" showing of prejudice).
81. Model Rules of Prof'l Conduct R. 3.7(a) (1983).
82. Hickman v. Taylor, 329 U.S. 495 (1947); see also infra Part I.A.
83. R. 3.7(a)(1).
84. Id.
firm to the particular case.' In theory, the change in words should

have increased the number of substantial hardship exceptions. It
appears, however, that cases citing the Model Rules are strongly
influenced by decisions under the Model Code.s The substantial
hardship exception continues to be narrowly construedY
Of greater practical significance, the Model Rules expressly
eliminated imputed disqualification unless it was otherwise required
by the conflicts rules.ss In this respect the Model Rules picked up and
echoed the trend in federal courts to limit the impact of imputed
disqualification.
While the Model Rules do not expressly distinguish between calling
a witness on behalf of a client and being called as a witness for the
opposition, these distinctions continue to carry weight in court
decisions.' Litigants may seek testimony as a strategic matter
because the advocate-witness rule may lead to disqualification of
opposing counsel. As a result, there is a healthy and appropriate
skepticism when the attorney is called by opposing counsel. The
Northern District of Illinois, which has chosen to draft its own rules of
attorney conduct for lawyers who appear before it, has also retained
this distinction."
85. There appears to be little legislative history on why the distinctive value prong
was dropped. See Center for Prof'l Responsibility, ABA, The Legislative History of
the Model Rules of Prof'l Conduct: Their Development in the ABA House of
Delegates 139 (1987). This ABA history does mention that, unlike the Model Code
provision, which limited the exception to cases in which the lawyer is of -distinctive
value... as counsel in the particular case," id. at 138, Rule 3.7 requires -a
balancing... between the interests of the client and those of the opposing party." Id.
at 140. It states that because a "balancing of interests" is required, a finding of
substantial hardship will depend of the facts of the particular case. ei.
86. For example, in 1998, Massachusetts moved from a Model Code to a Model
Rules approach to the advocate-witness. The most recent cases interpreting
Massachusetts Rule 3.7 continue to cite and rely on cases decided under DR 5-102 for
analysis. Commonwealth v. Patterson, 739 N.E.2d 682, 692 (Mass. 2000), Bernier v.
DuPont, 715 N.E.2d 442, 448 (Mass. App. Ct. 1999); Hogan v. Metro. Prop. &
Casualty Ins., No. 96-2337-B, 1997 Mass. Super. LEXIS 17, at *6 (Mass. Super. Ct.
Dec. 10, 1997).
87. See infra note 152 and accompanying text.
88. R. 3.7(b).
89. When a lawyer's testimony may be needed on behalf of the lawyer's own
client, a very practical cost-benefit analysis occurs. The lawyer considers whether the
benefits of his or her testimony (as opposed to testimony by other persons or not
presenting the evidence) outweighs the consequences to the client of changing
lawyers. But a cost-benefit analysis seldom weighs in favor of testimony when it is
sought by opposing counsel. United States v. Prantil, 764 F.2d 548, 554 (9th Cir. 1985)
("When, however, the proposed testimony is germane to his adversary's case, the
balance of hardships is no longer in equilibrium.").
90. Bogosian v. Bd. of Educ., 95 F. Supp. 2d 874, 876 (N.D. Ill. 2000). This
skepticism explains a related issue of the brief effort to use ethics rules to attempt to
limit the ability of prosecutors to subpoena defense counsel. See The Federal Law of
Attorney Conduct,supra note 3, § 813.04.
C. ComparingFederalCourt and Massachusetts Court Treatment
Evaluating the impact of the advocate-witness rule in federal court
practice is conceptually tricky because there is no uniform advocate-
witness rule in federal courts. In a majority of jurisdictions, the
federal courts apply the rules of the state in which they sit. But the
remaining courts may refer directly to the Model Code, the Model
Rules, their own rules of conaduct, or to multiple rules to evaluate
attorney conduct. 9 The picture is further complicated because the
advocate-witness rule was subject to significant modification by states,
with eleven of the forty-five states moving to a Model Rules approach
that modified Rule 3.7 in some respect. 92 Some states continued to
use imputed disqualification, others retained the distinction between
being called as a witness for or against one's client.93 Surprisingly,
Georgia retained the 1908 Canons' version of the advocate-witness
rule until 2001. 94 This variety of state approaches, along with no
consistent standard for federal court practice, means that in theory a
lawyer may be subject to different rules whether the lawyer is
litigating in state court or across the street in federal court.95 This, in
theory, should reflect a conceptual morass. But the federal courts
seem to ignore the differences in most circumstances, relying instead
on the general common law case decisions that have gone before. For
example, in FDIC v. United States Fire Insurance Company, the Fifth
Circuit looked to four different advocate-witness rules to determine
whether to disqualify counsel.96 When analyzing whether
disqualification was appropriate, the court reverted to the very
common policy concern of whether a conflict was present. In
determining that imputed disqualification was not warranted, the
court appeared to be influenced by the fact that the advocate's client
had consented to the theoretical conflict.
A tortured justification for disqualification such as that offered by
U.S. Fire, premised on a purported possible conflict of interest
sometime in the future, suggests not so much a conscientious
91. See generally Judith A. McMorrow, Establishing National Rules of Lawyer

Conduct in FederalDistrict Courts, 1996 The Prof. Lawyer 1.
92. See generally Lawyer as Witness, ABA/BNA Lawyers Man. On Prof'l
Conduct, LMPC 61:501 (1998); see also Van Detta, supra note 5, at 285-86.
93. The FederalLaw of Attorney Conduct,supra note 3, § 812.07[3].
94. Roy M. Sobelson, Legal Ethics, 51 Mercer L. Rev. 353, 358 (1999)
("[A]doption of Proposed Rule 3.7 would also end one of Georgia's disciplinary rules'
enduring mysteries-why Georgia has retained Canon 19 of the 1908 ABA Canons of
Professional Ethics as the model for its advocate-witness rule."). Georgia has now
adopted the Model Rules version of the advocate-witness rule, with a modification
that "[t]he maximum penalty for a violation for this Rule is a public reprimand."
Georgia Rules of Prof'l Conduct R. 3.7 (2001), available at http://www.gabar.org/
grpc37.htm.
95. See generally Lyon & Phillips, supra note 9 (discussing possible forum-
shopping to avoid imputed disqualification under advocate-witness rule).
96. FDIC, v. United States Fire Ins. Co., 50 F.3d 1304, 1312 (5th Cir. 1995).
professional concern for the profession and the client of the
opposing counsel as a tactic designed to delay and harass.f
Once a court believes that a motion is presented for strategic
purposes, it is likely that the court will be able to interpret around any
differences between the Model Code, Model Rules and state
variations. This is particularly true in federal courts, which
increasingly distinguish between whether an ethical violation is
present and whether disqualification is the appropriate remedy.Y
The impact in state court practice may be more significant. For
example, on January 1, 1998, Massachusetts moved from using the
Model Code to Model Rule 3.7 for evaluating advocate-witness
situations. Imputed disqualification under the Massachusetts Model
Code approach had been interpreted by the Boston Bar Association
as an immovable obstacle. 9 The new rule, which eliminates imputed
disqualification, will presumably give litigants more flexibility to use
other lawyers within a firm should the advocate need to testify.
The comments to the Restatement of the Law Governing Lawyers
aptly note that the Model Code treats advocate-witnesses primarily
through the lens of conflict of interest, while the Model Rules appears
to be "managing advocacy."" When the dust settles, it appears that,
except for the significant issue of imputed disqualification, there is
likely to be little significant difference in outcomes from application of
the Model Code or the Model Rules within the federal courts."" The
Model Rules more clearly add an evidentiary perspective, focusing on
whether the lawyer is a "necessary witness."102 Both focus on trial,
which suggests that the ethical dimensions are bound up in the
context-the procedure-of the trial environment. Yet advocate-
witness concerns are not addressed merely as matters of trial practice
and procedure presumably because the bar-and the courts, who have
97. Id. at 1315.

98. See, eg., Armstrong v. McAlpin, 625 F.2d 433, 444 (2d Cir. 1980). vacated and
remanded on proceduralgrounds, 449 U.S. 1106 (1981); Bd. of Educ. v. Nyquist, 590
F.2d 1241, 1247 (2d Cir. 1979); United States v. Johnson, 131 F. Supp. 2d 1088, 1100
(N.D. Iowa 2001) (two pronged inquiry of whether a conflict existed and "appropriate
response"); Ramsay v. Boeing Welfare Benefit Plans Comm., 662 F. Supp. 968 (D.
Kan. 1987); The FederalLaw of Attorney Conduct,supra note 3. § 808.02-
99. See BBA Ethics Opinion 93-5, available at
www.bostonbar.org/ethics/op93_5.htm (noting under Massachusetts DR 5-101, -[a]
lawyer and his firm ordinarily must withdraw from pending litigation when the lawyer
learns that he ought to be called as a witness on behalf of his client even though he
has a longstanding relationship with his client" and criticizing this rule and
recommending that the Massachusetts Supreme Judicial Court adopt a more flexible
rule).
100. Restatement (Third) of the Law Governing Lawyers § 108, Reporter's Note
(2000) (describing Code and Model Rules provisions on advocate-witness problem).
101. See generally The Federal Law of Attorney Conduct, supra note 3, § 808.01151-
[7]; Luna, supra note 22, at 459; cf Gregory C. Sisk, Iowa's Legal Ethics Rules-It's
Time to Join the Crowd, 47 Drake L. Rev. 279,292 n.36 (1999).
102. Model Rules of Prof'l Conduct R. 3.7(2) (1983).
a strong interest in the professional responsibility rules-wish lawyers
to exercise discretion to avoid the procedural and evidentiary
problems that flow from serving as both advocate and witness. By
casting the issue as an ethical or professional responsibility concern,
lawyers are asked to internalize and avoid the issue.
D. PracticalReasons to Avoid Serving as Both Advocate and Witness
Before exploring in greater detail the policy concerns behind the
advocate-witness rule and the courts' treatment of relationships, it is
important to note that too much emphasis on rules may neglect other
pressures that affect behavior. Very practical concerns discourage
lawyers from serving as a witness in a proceeding in which they are
also advocates. Significantly, testifying opens up claims of work-
product or attorney-client privilege waiver for subjects related to the
attorney's testimony.103 Courts have compelled production of work
product when lawyers express their opinions as witness." Certainly a
lawyer should recognize a substantial risk that attorney-client and
work-product privileges will be abrogated if the lawyer is named as a
witness. 05
More subtle forces may discourage lawyers from serving as
advocates as well. Clients might become angry because the lawyer
was not a stronger or clearer witness. 0 6 Some attorneys who have also
served as witnesses in cases in which they were not an advocate report
that switching to the role of witness was more stressful than serving as
an advocate) °7 In addition, neutral witnesses are likely to be more
effective." Lawyers can emphasize that the witness has no self
interest or other reason to intentionally or unintentionally slant
103. Alan J. Martin & Demetrios G. Metropoulos, Putting your Attorney on the
Witness Stand and His Advice at Issue: The Perils of Selective Waiver of Privilege, in
Attorney-Client Privilege in Civil Litigation 141, 143 (2d ed. 1997); Garvey, supra
note 6, at 219; Van Detta, supra note 5; see also ABS MB Inv. Ltd. v. IVAX Corp.,
No. CIV.A.94-1923, 1996 U.S. Dist. LEXIS 4502, at *7 (D. Md. Apr. 10, 1996)
(designated not for publication).
104. Handgards, Inc. v. Johnson & Johnson, 413 F. Supp. 926, 931 (N.D. Cal. 1976).
105. Leybold-Heraeus Tech., Inc. v. Midwest Instrument Co., 118 F.R.D. 609, 614
(E.D. Wis. 1987) (finding client assumed the risk of waiver by naming two of the
attorneys as witnesses and noting that failure to disclose documents would
disadvantage opposing party's ability to cross examine witness).
106. Garvey, supra note 6, at 226.
107. Advocate-witness interview (summaries on file with author). This was not the
uniform assessment, however. Several attorneys in labor arbitration, both
management and union, expressed no greater anxiety about serving as a witness.
Some relished the experience because it often created a jovial atmosphere in the
proceeding.
108. See Hickman v. Taylor, 329 U.S. 495, 517 (1947) (Jackson, J., concurring)
("Every lawyer dislikes to take the witness stand and will do so only for grave
reasons. This is partly because it is not his role; he is almost invariably a poor witness.
But he steps out of professional character to do it. He regrets it; the profession
discourages it.").
2001] AD VOCA TE AS WITNESS
testimony. All of these pressures gives practical reasons why serving

as advocate and witness is not an optimum tactical decision absent a
pressing need or, as discussed below, a substantial hardship to the
client should the lawyer be forced to withdraw.
E. InstitutionalConcern & Role Confiision
1. The Emphasis on Roles
The body of federal and Massachusetts court opinions on advocate-

witnesses give a rich rhetorical place to role differentiation and
institutional concerns. 1 9 The court's explanation in United States v.
Prantilis illustrative:
The advocate-witness rule prohibits an attorney from appearing as
both a witness and an advocate in the same litigation. This
venerable rule is a necessary corollary to the more fundamental
tenet of our adversarial system that juries are to ground their
decisions on the facts of a case and not on the integrity or credibility
of the advocates. Accordingly, adherence to this time-honored rule
is more than just an ethical obligation of individual counsel;
enforcement of the rule is a matter of institutional concern
implicating the basic foundations of our system of justice.""
"Venerable," "fundamental tenet," "time-honored rule" and "basic
foundations of our system of justice" are words designed to have the
reader tie the role distinction to the very fabric of fair advocacy. The
advocate-witness rule in some circumstances is driven primarily by
institutional concerns about trial integrity and legitimacy."' This
interest intersects with procedural concerns. For example, in Serody
v. Serody the Massachusetts Court of Appeals upheld the
disqualification of counsel, expressing concern that the outcome of the
trial will turn on the lawyer's credibility."' Even if the lawyer testified
truthfully, the testimony would appear less credible because it came
from the mouth of the opponent's advocate." 3 A procedural concern
109. See, e.g., Estate of Andrews v. United States, 804 F. Supp. 820, 827 n.2 (E.D.
Va. 1992) (stating "concerns of institutional integrity[] apply equally to jury and non-
jury trials").
110. United States v. Prantil, 764 F.2d 548,552-53 (9th Cir. 1985).
111. Cf. Roxanne Malaspina, Resolving the Conflict of the Unsworn Witness: A
Framework for Disqualifying House Counsel Under the Advocate-Witness Rule, 67
N.Y.U. L. Rev. 1073, 1089 (1992) ("[Tlhe institutional interests of reliable verdicts
and legitimacy are heightened in a case displaying an advocate-witness conflict of
interest.").
112. Serody v. Serody, 474 N.E.2d 1171, 1172 (Mass. App. Ct. 1985) (finding no
abuse of discretion to disqualify sua sponte wife's counsel after husband's attorney
gave notice of intent to call wife's attorney in modification of divorce decree;
testimony was relevant and likely to be prejudicial to wife; "filt %'Ms of no
consequence" that two other judges refused to disqualify attorney).
113. Id at 1173.
was also woven into the analysis: even if the advocate did appear
credible, how would testifying lawyers cross-examine themselves?
Because the lawyer would not be able to impeach himself if the
testimony was harmful to his client, an independent lawyer was
needed. In other words, the pressures presented in this case could rise
to the level of a conflict of interest, and that conflict was more than
just a personal concern between lawyer and client. If a conflict existed
that called into question the ability to have the underlying facts
presented and analyzed, then the process of adjudication was
threatened-an institutional concern. That institutional concern can
be captured using the language of procedure (such as due process) or
the language of ethics.
The institutional concern has become more pronounced in recent
years as both federal and Massachusetts courts increasingly
distinguish between whether a rule has been violated and the
appropriate remedy.1 4 Increasingly, both federal and Massachusetts
opinions state that even if there is a violation, disqualification will be
appropriate only if the lawyer's conduct will "taint" the trial"' or the
legal system.1 6 Taint to the trial involves situations in which the dual
functioning will call into question whether the facts can be fully
explored in a manner fair to both sides."'
Taint to the legal system, as the term suggests, can be more
amorphous. But courts know it when they see it, and increasingly
courts have a discerning eye. Courts wish to avoid motions to
disqualify brought for tactical reasons.' 8 But courts also will act when
the dual functioning so permeates the proceeding that the court
becomes distracted by the lawyer's advocacy. FDIC v. Isham is
illustrative." 9 Defense counsel had represented two banks in multiple
loans and in negotiation with the FDIC when the banks were placed
114. See supra note 98 and accompanying text.

115. Courts in the Second Circuit tend to focus on taint in the trial itself. See, e.g.,
Armstrong v. McAlpin, 625 F.2d 433, 444 (2d Cir. 1980), vacated and remanded on
proceduralgrounds, 449 U.S. 1106 (1981) (noting that adopting a restrained approach
to disqualification motions will not rectify all ethical violations, but will reduce tactical
motions); Freight Drivers Local No. 375 v. Kingsway Transp., Inc., No. CIV.90-593E,
1991 U.S. Dist. LEXIS 15801, at *3 (W.D.N.Y. Oct. 22, 1991) (citing Bottaro v.
Hatton Assoc., 680 F.2d 895, 896 (2d Cir. 1982)).
116. See, e.g., Miller v. Colo. Farms, No. CIV.97-WY-2015-WD, 2001 U.S. Dist.
LEXIS 7553 (D. Colo. June 1, 2001) (holding disqualification appropriate where
plaintiff will rely on advice of counsel defense; applying Colorado and federal court
opinions on advocate-witness and concluding that trial would be tainted because of
jury confusion); World Youth Day, Inc. v. Famous Artists Merch. Exch., 866 F. Supp.
1297, 1303 (D. Colo. 1994); FDIC v. Isham, 782 F. Supp. 524, 528 (D. Colo. 1992)
(finding substantial risk of jury confusion by dual role); Borman v. Borman, 393
N.E.2d 847, 856 (Mass. 1979).
117. Isham, 782 F. Supp. at 528 ("The critical question is whether the litigation can
be conducted in fairness to all parties.").
118. The FederalLaw of Attorney Conduct, supra note 3, § 808.01[5].
119. 782 F. Supp. 524 (D. Colo. 1992).
2001] AD VOCA TE AS WITNESS
in receivership.12 Defense counsel then represented several former

directors and officers of the bank in a subsequent suit by the FDIC. 2
Because the officers and directors were asserting an advice of counsel
defense, the FDIC moved to disqualify plaintiffs counsel under the
advocate-witness rule.1" The court found that the dual functioning
would taint the trial because of jury confusion and the possibility that
the jury will give either too much or too little weight to counsel's
testimony because of the dual role, giving an unfair advantage to one
side or the other.' The court also described the impact on the legal
system:
In addition, Colantuno's dual role taints the legal system. Colantuno
will be in the awkward position of testifying either that he gave
proper legal advice to the defendants, which would undercut their
defense, or that he gave them improper legal advice, which would
harm his professional reputation. This2 4 Hobson's choice
impermissibly taints the legal system generally.
The court's description raises an obvious conflict of interest concern.
The court also asserted the somewhat discredited standard of
"appearance of impropriety," but relied on this standard as well
because of the legal profession's intimate involvement in the savings
and loan crisis. 125
The institutional concerns noted above are inextricably intertwined
with concerns about role confusion. The strains of etiquette that run
through advocate-witness decisions bring out concerns of role
confusion. Arguing one's own credibility is both "unseemly" and
"ineffective." 126 Commentators sometimes ridicule the language of
etiquette because of an understandable worry that it may reflect mere
convenience or practice preference rather than an important concern.
But behind this etiquette language lies the apprehension that all the
players in the adversarial theatre are thrown off balance when one
player moves between roles.
Role confusion is of greater concern when a case is tried to a jury
rather than a judge. Presumably a sophisticated judge will not be
unduly swayed by the lawyer's role. But the advocate-witness rule
does not limit its application to jury trials. Courts have applied the
advocate-witness rule in trials before judges and in certain pre-trial
120. Id. at 527.

121. Id at 524, 529.
122. Id. at 528.
123. Id.
124. Id; see also World Youth Day, Inc. v. Famous Artists Merch. Exch., 866 F.
Supp. 1297,1303 (D. Colo. 1994) (taint to legal system).
125. Ishanz, 782 F. Supp. at 529 ("The savings and loan crisis is pervasive. It has
severely undercut public faith in the banking system. Unfortunately, the legal
profession is intimately involved and, as a result, it has suffered a corresponding loss
of public confidence.").
126. United States v. Johnson, 131 F. Supp. 2d 1088. 1108 (N.D. Iowa 2001).
hearings before a judge. 127 If lawyers were given significantly more
leeway in bench trials, there is some concern that a lawyer might
waive a jury trial to avoid the impact of the advocate-witness rule. 28
But fewer negative consequences inhere in dual functioning before a
judge. 1 9 While lawyers can avoid the issue by electing not to
participate, courts generally will not require withdrawal from trial30 on
the merits because a lawyer has testified in a pre-trial proceeding. If
the lawyer's pre-trial testimony is highly disputed, courts leave open
whether subsequent disqualification might be appropriate. 3 1 Courts
have also disqualified lawyers from participating in certain pre-trial
activity, such as depositions, if the activity includes evidence that, if
admitted, would reveal the attorney's dual role as both advocate and
witness. 132 Not surprisingly, the district courts have very broad
discretion to determine whether a lawyer who testifies in a pre-trial
proceeding should be allowed to continue representation at the
trial. 133
2. Evaluating the Role Emphasis
Maintaining pristine roles within a trial setting is an enduring legal
fiction. One's role as adjudicator, advocate or witness blur in some
contexts. Just as the advocate-witness rule allows a lawyer to testify as
127. See, e.g., Freight Drivers Local No. 375 v. Kingsway Transp., Inc., No. CIV.90-
593E, 1991 U.S. Dist. LEXIS 15801, at *12-13 (W.D.N.Y. Oct. 22, 1991) (disqualifying
lawyer from serving as advocate in evidentiary hearing in which he would also testify,
though counsel was not disqualified from representing client at full trial).
128. Estate of Andrews v. United States, 804 F. Supp. 820, 827 n.2 (E.D. Va. 1992).
129. See United States v. Morris, 714 F.2d 669 (7th Cir. 1983) (holding advocate-
witness rule did not prevent attorney testimony in pre-trial suppression hearing
because judge is unlikely to be confused by the dual appearance); United States v.
Johnston, 690 F.2d 638, 643-45 (7th Cir. 1982); Johnson, 131 F. Supp. 2d at 1105.
130. Morris, 714 F.2d 669. Attorneys routinely present affidavits in certain pre-trial
settings, such as applications for interlocutory relief. See Garvey, supra note 6, at 192-
94. Lawyers also frequently submit affidavits in support of, or opposition to, motions
for discovery sanctions. Id. These affidavits, however, typically go to the discovery
process rather than the merits of the case. Id. at 192-93. The practice is usually
confined to preliminary matters that will usually be tested in a full trial on the merits.
Even this fairly routine pre-trial practice can raise advocate-witness concerns when
the credibility of an attorney-advocate is directly called into question. See, e.g.,
Permian Corp. v. United States, 665 F.2d 1214, 1218 & n.8 (D.C. Cir. 1981)
(expressing concern "as to the professional propriety of Mr. Juceam's performance in
the district court in the dual role of affiant and advocate" in appeal from preliminary
injunction prohibiting SEC from turning over documents to Dept. of Energy where
record included affidavit of counsel concerning oral understanding and same counsel
presented oral argument to court of appeals).
131. Johnson, 131 F. Supp. 2d at 1108.
132. World Youth Day, Inc. v. Famous Artists Merch. Exch., 866 F. Supp. 1297,
1303 (D. Colo. 1994) (disqualifying lawyer from both participating in trial and taking
depositions, but allowing lawyer to participate in other pre-trial activity).
133. Johnson, 131 F. Supp. 2d 1088 (finding court should consider possible
prejudice to defendant or unfairness if prosecutor who testified at pre-trial proceeding
continued participation at trial).
to uncontested matters, judges take "judicial notice" of facts that are

common knowledge." 3 Lawyers frequently provide factual
information about the litigation process, such as information about
discovery.13 When prosecutors make discretionary charging and
disposition decisions, they engage in a process that "looks a lot like
adjudication."136
' Presumably each of these tasks require a level of
detachment, of measured judgment.'37 Nonetheless, each of these
examples nibbles at the edge of the traditional role, but does not
undermine the core functioning. The judge risks reversal by taking
judicial notice of disputed facts.' And the evidentiary, ethical and
procedural issues inherent in the advocate-witness rule attempt to
protect the core function of advocate.
When courts talk about role confusion, they are referring to
circumstances in which the traditional functions might become
impaired by multiple roles. The fact-finder may give undue weight to
the testimony of the attorney. Alternatively, opposing counsel may be
hampered in cross-examination. If the lawyer chooses not to testify
and presents evidence through an alternative witness, the lawyer's
participation might be so obvious to all observers that the lawyer
becomes, in effect, an unsworn witness.'39 The testifying lawyer's own
judgment may be impaired by the desire to be a credible witness. The
testifying advocate's performance as an advocate may be impaired
because of the lawyer's inability to argue persuasively her own
credibility. Except for the possibility of conflicts of interest, each of
these claims taken alone may appear to be a slender reed on which to
place the weight of a rather strong ethics rule. However skeptical
commentators are, there is a "there, there." Seemingly simple,
prophylactic rules help capture a concern that is amorphous.
In some cases the lawyer's testimony emerges because the lawyer
has become inextricably intertwined with the merits. For example,
one district court found disqualification was appropriate because of
the attorney's "inability to separate himself from the dual roles of
attorney and witness," even though the DR 5-102(A) threshold
requirement of "ought to be called as a witness" had not been met.,"
The court observed that "[h]e became so involved with the
134. Fed. R. Evid. 201(b), (c).

135. See Garvey, supra note 6, at 192-94 (identifying processlsubstance distinction).
136. H. Richard Uviller, The Neutral Prosecutor:The Obligationof Dispassionin a
PassionatePursuit,68 Fordham L. Rev. 1695, 1714 (2000).
137. Id at 1715-16.
138. See, e.g., Lee v. City of Los Angeles, 250 F.3d 668,689-90 (9th Cir. 2001).
139. United States v. McKeon, 738 F.2d 26, 35 (2d Cir. 1984) (finding presence of
counsel would taint trial where counsel would serve as unsworn witness); United
States v. Cunningham, 672 F.2d 1064, 1074-75 (2d Cir. 1982) (disqualifying counsel
where he would effectively be an unsworn witness if permitted to act as trial counsel);
Malaspina, supra note 111.
140. Commercial Credit Bus. Loans, Inc. v. Martin, 590 F. Supp. 328, 336 (E.D. Pa.
1984) (ordering new trial because of counsel misconduct).
presentation of his client's case that he testified to facts not in

evidence and stated his personal opinion regarding witnesses'
'
testimony and the justness of his client's cause." 141 These are the very
cases in which the lawyers become so passionate about the case that
tensions between the parties and credibility attacks can make the goal
of a measured trial difficult. 4 These are also likely circumstances in
which the very passion at question has resulted in a strong attorney-
client bond.'43
3. "Trusted Counsel": Judicial Protection of Relationships with
Clients
Some courts expressly state that they do not wish to separate clients
from "trusted counsel without giving rise to any countervailing benefit
to either those clients themselves or to the judicial system.",44
Counsel become "trusted" because the lawyer and client have
developed an attorney-client relationship grounded in understanding
and respect. While courts might note the value of trusted counsel, as
Professor Bruce Green has observed, many courts give relatively little
weight to the burden clients suffer when their chosen counsel has been
disqualified.'45
This lack of significant respect for a real, as opposed to abstract,
relationship is reflected in the federal courts' narrow and even stingy
interpretation of what constitutes a substantial hardship under the
advocate-witness rule.146 Federal courts have found that a "long-
standing relationship with a client, involvement with the litigation
from its inception or financial hardship" are not substantial hardships
sufficient to trigger an exception to the advocate-witness rule. 47 Long
familiarity with the client and the ability to communicate in the
141. Id.
142. Gen. Mill Supply Co. v. SCA Serv., Inc., 505 F. Supp. 1093, 1098 (E.D. Mich.
1981) (stating that disqualification of firm is appropriate where "the entire proceeding
would be tainted by the harsh recriminations hurled by the parties and witnesses").
143. See, e.g., United States v. Orgad, 132 F. Supp. 2d 107, 123 (E.D.N.Y. 2001)
(finding attorney's "incredible bond" did not constitute a relationship that created a
substantial hardship for client).
144. Rice v. Baron, 456 F. Supp. 1361, 1372 (S.D.N.Y. 1978) (citing Int'l Elec. Corp.
v. Flanzer, 527 F.2d 1288, 1293 (2d Cir. 1975)) (denying motion to disqualify under the
advocate-witness rule, but disqualifying under conflicts rules).
145. Green, supra note 4, at 90.
146. Stonerock, supra note 59, at 837-40.
147. Jones v. City of Chicago, 610 F. Supp. 350, 361 (N.D. Ill. 1984), rev'd on other
grounds, 856 F.2d 985 (7th Cir. 1988); accord Orgad, 132 F. Supp. 2d at 123 (finding
attorney's "incredible bond" did not constitute a relationship that created a
substantial hardship for client). A few courts have suggested that long involvement in
the litigation would constitute distinctive value. See, e.g., Miller Elec. Constr., Inc. v.
Devine Lighting Co., 421 F. Supp. 1020, 1023 (W.D. Pa. 1976); Greenebaum-
Mountain Mortgage Co. v. Pioneer Nat'l Title Ins. Co., 421 F. Supp. 1348, 1353 (D.
Colo. 1976).
client's native language of Romanian was not sufficient."'4 A ten-year

relationship and expending over 450 hours of work on the case did not
constitute "distinctive value" to the client. 49 As long as the client can
find replacement counsel, courts generally find no substantial
hardship. 5 ' Some courts have concluded that even difficulty in
obtaining substitute counsel is not substantial hardship. 5' Even the
more recent substantial hardship cases decided under Model Rule 3.7,
which urges in the comments a balancing test, have continued to give
a narrow interpretation to substantial hardship.' 2 Under a balancing
test, substantial hardship would be evaluated in light of a host of
factors, including the nature of the attorney's testimony, the impact on
the other litigants in the case, the ability of the attorney to continue to
work behind the scene, and other concerns.'53 But the lack of even
rhetorical respect for a long-standing attorney-client relationship in
many of the cases is quite striking.
Some commentators have been very critical of the courts' narrow
interpretation of the substantial hardship exception, calling it "harsh,
narrow" and "almost abusive."'" The derivative expense and delay
that accompanies disqualification, which is closely akin to relationship5
issues, does not rise to the level of substantial hardship.'Y
Occasionally a federal court will acknowledge the real-life
consequences of disqualifying devoted counsel, such as the District
Court in Kansas, which found substantial hardship where the client
would have great difficulty finding experienced lead counsel who
would be willing to undertake the litigation on a contingency fee
basis. 156 But this broader interpretation is the exception.
148. Draganescu v. First Nat'l Bank, 502 F.2d 550, 552 (5th Cir. 1974) (permitting
lawyer still to work as translator).
149. U.S. ex reL Sheldon Elec. Co. v. Blackhawk Heating & Plumbing Co., 423 F.
Supp. 486,490 (S.D.N.Y. 1976).
150. See, e.g., SuperGuide Corp. v. Directv Enter., Inc., 141 F. Supp. 2d 616, 624
(W.D.N.C. 2001) (acknowledging extensive experience and expertise of attorney and
"many hours devoted to the litigation" but disqualifying counsel because it was not
"likely that SuperGuide will have difficulty finding replacement counsel of equal
stature").
151. Connell v. Clairol, Inc., 440 F. Supp. 17, 19 (N.D. Ga. 1977) (finding no
substantial hardship despite "the dearth of competent patent counsel in the Atlanta
area").
152. Model Rules of Prof'l Conduct R. 3.7, cmt. 4 (1983): SuperGuide Corp., 141 F.
Supp. 2d at 624; Miller v. Colo. Farms, No. 97-WY-2015-WD, 2001 WL 629463, at *5
(D. Colo.Jan. 16,2001).
153. R. 3.7, cmt. 4.
154. Stonerock, supra note 59, at 838.
155. Kalmanovitz v. G. Heileman Brewing Co., 610 F. Supp. 1319, 1326 (D. Del.
1985); Teleprompter of Erie, Inc. v. City of Erie. 573 F. Supp. 963. 966 (W.D. Pa.
1983).
156. Chapman Eng'rs, Inc. v. Natural Gas Sales Co., 766 F. Supp. 949, 959 (D. Kan.
1991) (finding facts to suggest that efforts to call opposing counsel as necessary
witness were for tactical reasons). But see Norman Norell, Inc. v.Federated Dep't
Stores, 450 F. Supp. 127, 131 (S.D.N.Y. 1978) (refusing to accept claimed difficulty in
The Model Code requires not just substantial hardship, but also that
the substantial hardship be due to "the distinctive value of the lawyer
[or his firm] as counsel in the particular case."' 57 But this simply
moves the interpretive possibilities to the phrase "distinctive value."
Courts do not consider the interpersonal relationship between lawyer
and client-the trust built up due to a long relationship-as a
distinctive value. Some courts have concluded that the distinctive
value component of DR 5-101(B)(4) is met only when the attorney
has a specialized legal expertise. 158 These cases suggest a rather
distressing conclusion: lawyers are deemed fungible unless they have
a particular legal expertise. Under this approach, the human
dimension of trust that develops-the heart of a fiduciary
relationship-receives 59no acknowledgment and consequently no
respect in the analysis.1
Clients, on the other hand, certainly do not treat lawyers as
fungible, particularly knowledgeable clients who seek a particular
expertise. ' 6 Clients who are not repeat actors with significant
economic clout, such as middle income clients, must rely even more
on the human dimension of trust because they have not developed the
expertise to assure that they are receiving good counsel. They
typically do not have access to a wide group of lawyers.
The dismissive attitude toward the interpersonal aspects of the
attorney-client relationship is somewhat understandable. A court may
not want an open-ended value such as "relationship," which requires a
judgment call about an interpersonal bond. The cure is not to elevate
the attorney-client relationship above other values and concerns. But
it certainly is entitled to greater weight and respect than the federal
courts give. A more thoughtful balancing that expressly looks for the
nature of the attorney-client
161
relationship would give greater
protection to clients.
In contrast to the somewhat stingy protection of relationships seen
in federal court practice, the Massachusetts opinions contain a
somewhat greater rhetorical respect for the value of a long-standing
attorney-client relationship. For example, in Gorovitz v. Planning
Board of Nantucket the Massachusetts Supreme Judicial Court
finding other counsel to take case on contingency as sufficient to demonstrate

distinctive value).
157. Model Code of Prof'l Responsibility DR 5-101(B)(4) (1980).
158. Supreme Beef Processors v. Am. Consumer Indus., Inc., 441 F. Supp. 1064,
1068-69 (N.D. Tex. 1977).
159. See generally Michael D. Bayles, Professional Ethics 70-86 (1981) (discussing
obligations of trustworthiness in professional ethics).
160. Lyon & Phillips, supra note 9, at 73-74.
161. See Miller v. Colo. Farms, No. 97-WY-2015-WD, 2001 WL 629463, at *5 (D.
Colo.Jan. 16, 2001) (acknowledging that "disqualification is likely to work substantial
hardships upon [the client], including financial hardships as well as difficulties in re-
starting this case with new counsel" but based on balancing of interests, a trial "free of
taint" warranted disqualification).
2001] AD VOCA TEAS WITNESS
allowed an attorney who was both general partner and legal counsel
to the partnership to testify as a key material witness and continue as
advocate. 162 While grounding its decision on the interpretation that
the attorney was also a party litigant, the court went on to note the
particularly high value that exsts when a long or extensive
professional relationship between an attorney and a client may have
afforded the lawyer or firm with extraordinary familiarity with the
client's affairs. 1" The Supreme Judicial Court also expressly
reaffirmed its commitment that disqualification is appropriate only
when continued participation taints the legal system or the trial
itself."6 The strongest precedential force of Gorovitz appears to be its
admonition that courts defer to an attorney's conclusion that his or
her conduct does not violate the code. Other Massachusetts
decisions, however, have rejected a conclusion that trust in counsel
could constitute a substantial hardship, such as where the case
involved a manageable breach of contract claim.116
F. UnderstandingCourts' Strident Interpretationof the Advocate-

Witness Rule
Courts are, by their nature, public forums, financed by the state to
offer public statements of norms.167 Individual judges have differing
views of how actively a court should seek to establish norms for
attorney conduct. Most courts envision that lawyers are "officers of
the court" and have obligations toward the legal system." s Most
importantly, the judicial branch has the power to sanction attorneys
for misconduct, including imposing significant fines, ordering
disqualification of counsel, fee forfeiture and the like.'" Both state
and federal judges can refer lawyer misconduct to the state regulatory
162. Gorovitz v. Planning Bd., 475 N.E.2d 377, 378 (Mass. 1985).
163. Id. at 380 (quoting ABA Comm. on Ethics and Prof'l Responsibility, Formal
Op. 339 (1975)).
164. Id. at 380.
165. Id.; see also Adoption of Erica, 686 N.E.2d 967, 973 (Mass. 1997); Wellman v.
Willis, 509 N.E.2d 1185, 1189 (Mass. 1987); Commonwealth v. Jordan, 733 N.E.2d 147,
153 (Mass. App. Ct. 2000).
166. Hogan v. Metro. Prop. & Cas. Ins. Co., No. 96-2337-B, 1997 Mass. Super.
LEXIS 17, at *19 (Mass. Super. Ct. Dec. 10, 1997).
167. Cf. Owen M. Fiss, Out of Eden, 94 Yale LJ. 1669, 1673 (1985).
Adjudication is more likely to do justice than conversation, mediation,
arbitration, settlement, rent-a-judge, mini-trials, community moots or any
other contrivance of ADR, precisely because it vests the power of the state
in officials who act as trustees for the public, who are highly visible, and who
are committed to reason.
Id.
168. See, e.g., Malautea v. Suzuki Motor Co., 987 F.2d 1536, 1546-47 (11th Cir.
1993); see generally Eugene R. Gaetke, Lawyers as Officers of the Court, 42 Vand. L
Rev. 39 (1989).
169. There is a question whether disqualification functions sometimes as a sanction
and other times as a remedy. See Green, supra note 4, at 129.
body for review and possible sanction by the bar.170 These powers all
emerge not just from a desire to control the proceedings before the
court-a procedural value-but also for many judges from a time-
honored sense that judges should guide the legal profession.',
Although many published federal and Massachusetts court opinions
ask whether the dual functioning as advocate and witness will taint the
trial process, some courts also make clear that judges have an
obligation to help the profession maintain high professional
standards. 7 ' The Supreme Court has embraced this function, at least
in theory.'73 While courts sometimes state that "courts do not exist to
discipline attorneys, but to resolve disputes," courts nonetheless take
an active interest in the state of legal ethics.'74 This contrasts sharply,
as we see below, with the view that some arbitrators take of their role
in arbitration. 75
II. IMPLEMENTING ADVOCATE-WITNESS CONCERNS IN LABOR

ARBITRATION
A. The Cultureof LaborArbitration

The treatment of the advocate-witness is quite different in labor
arbitration than the treatment reflected in reported court decisions.
The arbitration process is much more tolerant of, and occasionally
even embraces, the dual functioning. To understand why this is so, it
is necessary to have a brief understanding of labor arbitration.
Arbitration is the process of submitting a dispute to a neutral
person selected by the parties to give a binding resolution of the
dispute.'76 Arbitration is very common in collective bargaining
agreements negotiated by union and management, with almost all
170. The FederalLaw of Attorney Conduct, supra note 3, § 807.01.

171. See, e.g., Dondi Prop. Corp. v. Commerce Sav. & Loan Ass'n, 121 F.R.D. 284,
286 (N.D. Tex. 1988) (en banc) (articulating standards of litigation conduct).
172. See, e.g., Emle Indus., Inc. v. Patentex, Inc., 478 F.2d 562, 565 (2d Cir. 1973);
Russo v. Friedman, No. 91 Civ. 6913, 1992 U.S. Dist. LEXIS 11418, at *22 (S.D.N.Y.
July 31, 1992); Huntington v. Great W. Res., Inc., 655 F. Supp. 565, 567 (S.D.N.Y.
1987).
173. See, e.g., Wheat v. United States, 486 U.S. 153, 160 (1988) ("Federal courts
have an independent interest in ensuring that criminal trials are conducted within the
ethical standards of the profession and that legal proceedings appear fair to all who
observe them."); Nix v. Whiteside, 475 U.S. 157, 166 (1986).
174. Chapman Eng'rs, Inc. v. Natural Gas Sales Co., 766 F. Supp. 949, 953 (D. Kan.
1991) (citing Papanicolaou v. Chase Manhattan Bank, N.A., 720 F. Supp. 1080, 1082
(S.D.N.Y. 1989)).
175. See infra Part II.B.
176. Frank Elkouri & Edna Asper Elkouri, How Arbitration Works 2 (Marlin M.
Volz & Edward P. Goggin eds., 5th ed. 1997) ("[A] simple proceeding voluntarily
chosen by parties who want a dispute determined by an impartial judge of their own
mutual selection, whose decision, based on the merits of the case, they agree in
advance to accept as final and binding.").
contracts providing for arbitration of certain types of grievances."

Over sixteen million employees are union members, and over
eighteen million employees are covered by union contracts, which
means that arbitration represents a significant institutional mechanism
for accessing justice for a large number of middle-class individuals."'
The formal structure of labor arbitration involves a union
representative and management representative making presentations
to the neutral person. The representatives need not be lawyers.
Figures vary, but somewhere between twenty-five and thirty-five
percent of the union advocates are lawyers.'79 Management appears to
be more likely than unions to have attorney-advocates. A grievance is
usually initiated by the union on behalf of the employee." As a
formal matter, the union is the client. But unions have a duty of fair
representation to the individual employee, which creates at least a
minimal level of obligation to the bargaining unit member.'' The
Supreme Court has analogized this to a fiduciary duty.1 2 This duty of
fair representation does not require a union to provide an attorney
who satisfies professional standards.1 3 Consequently, legal ethics
rules provide an extremely important institutional force to assure a
level of competent and fair representation. Although the client
technically is the union, as Professor Russell Pearce describes,
concepts of the derivative client strongly suggest that the lawyer owes
duties of competence and loyalty to the individual union member. t
Although labor arbitration has its roots in the desire to resolve
labor-management disputes, it carries many fundamental aspects of
177. Laura J. Cooper and Dennis R. Nolan, Labor Arbitration: A Coursebook 15

(1994); Basic Patterns in Union Contracts 37 (13th ed. 1992).
178. Statistical Abstract of the United States 445 (2000). In 1999, 16,476,700
individuals were union members and 18,182,300 were covered by union contracts.
According to the 1999 figures, 13.9% of the labor force are union members and 15.3%
are covered by union contracts.
179. Cooper & Nolan, supra note 177, at 20.
180. See Clyde W. Summers, The Contract of Employment and the Rights of
Individual Employees: Fair Representation and Employment at Will, 52 Fordham L
Rev. 1082, 1093 (1984).
181. Air Line Pilots Ass'n v. O'Neill, 499 U.S. 65, 67 (1991) (stating that union
actions are arbitrary only if union's behavior was so far outside a wide range of
reasonableness as to be irrational); Vaca v. Sipes, 386 U.S. 171, 190 (1967) (holding
union breaches duty of fair representation if its actions are "arbitrary, discriminatory,
or inbad faith").
182 O'Neill,499 U.S. at 74.
183. Russell G. Pearce, The Union Lawyer's Obligations to Bargaining Unit
Members: A Case Study of the Interdependence of Legal Ethics and Substantive Law,
37 S.Tex. L. Rev. 1095, 1104-05 (1996).
184. Id.at 1108, 1115-17. Prof. Pearce states that "[t]he derivative client doctrine
has implications for the lawyer's duties of loyalty, competence, and confidentiality."
Id at 1108. Confidentiality is the most problematic of these obligations since the
union and the individual union member are akin to joint clients, which in turn raises
particular problems of confidentiality. Id. at 1114-15.
traditional court adjudication. 85 An arbitrator "does not sit to

dispense his own brand of... justice," but is constrained by the
"essence [of] the collective-bargaining agreement." '86 Because labor
arbitration is private (except when public employers are involved), the
constitutional requirements of due process do not apply.', But
"notions of 'due process' must be incorporated into grievance and
arbitration procedures for the courts to enforce or the National Labor
Relations Board to defer to arbitrators' awards."'"
Labor arbitration produces some rules and precedents, which many
other forms of alternative dispute resolution do not provide. 9 The
conclusions and opinions of arbitrators are often published with the
consent of the parties." ° Although published opinions are not binding
precedent, they provide public statements of the prevailing rules, as
well as provide advice to future litigants. This is not just an academic
possibility. Fairweather's Practice and Procedure in Labor
Arbitration, an 800 page comprehensive treatise, is in its fourth
edition and cites extensively to published arbitration opinions.,9' In
other words, labor arbitration is much more than settlement, which
tends to move the resolution into a completely private venue.
Just as with court opinions, a written opinion helps instill
"confidence in the integrity of the process" of labor arbitration."~ It is
justice within the labor-management community, setting public norms
and standards. Although every case may not involve the expression of
public values, the outcomes hopefully reflect the spirit of the labor-
185. David Luban, Settlements and the Erosion of the Public Realm, 83 Geo. L.J.
2619, 2620 (1995) (describing "openness, legal justice, and the creation of public
goods" as values of adjudication).
186. United Steelworkers of Am. v. Enter. Wheel & Car Corp. 363 U.S. 593, 597
(1960). This was the third of what became known as the Trilogy cases interpreting §
301 of the Taft-Hartley Act.
187. See Norman Brand, Due Process in Arbitration, in Labor and Employment
Arbitration § 15.01 (Bornstein et al. eds., 2d ed. 1998).
188. Fairweather's Practice and Procedure in Labor Arbitration 374 (Ray J.
Schoonhoven ed., 4th ed. 1999) [hereinafter Fairweather's].
189. William M. Landes & Richard A. Posner, Adjudication as a PrivateGood, 8 J.
Legal Stud. 235,248 (1979).
190. Code of Profl Responsibility for Arbitrators of Labor-Management Disputes
§ II.C (Privacy of Arbitration) (as amended May 29, 1985), available at
http://www.adr.org/rules/ethics/labor-code.html; Christopher B. Kaczmarek, Public
Law Deserves Public Justice: Why Public Law ArbitratorsShould Be Required to Issue
Written Publishable Opinions, 4 Empl. Rt. & Employ. Pol'y J. 285, 298-99 (2000)
("[M]any opinions do get published and are cited to by other arbitrators.... Written
arbitrage opinions are a firmly established piece of the 'culture' of labor-management
relations."). In addition, the parties may post arbitration opinions on the web.
Reginald Alleyne, Statutory Discrimination Claims: Rights "Waived" and Lost in the
Arbitration Forum, 13 Hofstra Lab. & Emp. L.J. 381,422 (1996).
191. See Fairweather's, supra note 188.
192. United Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593, 598
(1960).
management community that entered into the collective-bargaining

agreement. 19 3
Labor arbitration is not court-sponsored and generally the cost of
the arbitration is absorbed by the parties. ' In the majority of labor
arbitrations the two sides have chosen the arbitrator (or arbitrators)
from a slate.195 One significant goal of the arbitration process is to
resolve the differences
196
with less time and expense than court litigation
would entail.
In sum, this brief summary reveals a dispute resolution scheme that
provides access to justice for a large number of middle-class
individuals. While labor arbitration has many attributes of private
justice, such as greater control over the forum, this private justice has
strong norms driven by custom, practice and-most importantly-by
the public policies underlying the federal labor statutes."
193. Arbitral opinions are likely to serve as persuasive, rather than binding,
authority. Court opinions are consequently a stronger form of precedent. Courts also
give far less power to the parties to exclude an opinion from public view. But even
courts have the ability to shield their decisions from public view through the dubious
practice of unpublished opinions. See generally Robert J. Martineau. Restrictions on
Publication and Citation of Judicial Opinions: A Reassessment, 28 U. Mich. J.L
Reform 119 (1994); Kirt Shuldberg, Comment, Digital Influence: Technology and
Unpublished Opinions in the Federal Courts of Appeals, 85 Cal. L. Rev. 541 (1997).
For a more favorable view of unpublished opinions, see Boyce F. Martin. In Defense
of Unpublished Opinions, 60 Ohio St. L.J. 177 (1999).
194. Alleyne, supra note 190, at 409-10.
195. See Frank Elkouri & Edna Asper Elkouri, How Arbitration Works 135-36
(4th ed. 1985). Certain disputes call for a three arbitrator panel with one
management appointed member, one labor appointed member, and the third selected
by the two party-appointed individuals. The party-appointed neutral often may not be
"neutral" in the tradition sense. See Deseriee A. Kennedy, PredisposedlWith Integrity:
The Elusive Quest ForJustice in Tripartite Arbitrations, 8 Geo. J. Legal Ethics 749,
774 (1995). In one quite amazing case of role confusion in a Rhode Island arbitration,
a party-appointed neutral (the arbitrator) stepped away from the judge's table, took
an oath of office and testified about certain factual matters in the very proceeding in
which he was adjudicating. While this blending of roles may be common in a
European model, it is significantly outside the norm even in the informal arbitration
setting. In that circumstance, the American Arbitration Association, which had
administered the arbitration, intervened and required the parties to start over with
arbitrators who would not serve as witnesses. Interview with Richard M. Reilly,
formerly Senior Vice President, American Arbitration Association.
196. If trials are like "surgeries: painful last resorts for otherwise incurable
ailments, which are likely to place the patient in a weakened condition at least
temporarily and almost certain to leave lasting scars," then labor arbitration is a
structural equivalent of day surgery. Luban, supra note 185, at 2621.
197. Fairweather's, supra note 188, at 1 (stating that practice and procedure of
modem labor arbitration are firmly rooted in "state and federal law seeking to
promote uniformity and other public policies underlying the federal labor statutes").
The 1947 Taft-Hartley Act, 29 U.S.C.A. §§ 141-97, authorized federal courts to
enforce collective bargaining agreements, which eventually led to a "whole-hearted
endorsement of arbitration" by the Supreme Court. See Cooper & Nolan, supra note
177, at 12; see also Thomas C. Kohler, Civic Virtue at Work: Unions as Seedbeds of the
Civic Virtues, in Seedbeds of Virtue: Sources of Competence, Character, and
Citizenship in American Society 131, 150 (Mary Ann Glendon & David Blankenhorn
976 FORDHAM LAW REVIEW [Vol. 70
B. The Advocate-Witness in LaborArbitration
Although the rules of ethics would suggest that serving as advocate
and witness is strongly discouraged, "[i]n arbitration proceedings, it is
entirely proper for the advocate (counsel or presenter) to testify."'' 98
Even in hearings before the National Labor Relations Board, early
published opinions indicated that "it is not our function or
responsibility to pass on the ethical propriety of a decision by counsel
to testify in one of our proceedings" as long as the testimony "is
otherwise proper and competent."' 99 This tolerance of dual
functioning appears to apply to labor issues litigated in the federal
courts, where a simple assertion of substantial hardship has been
sufficient to allow the advocate to argue an appeal where the advocate
was the crucial witness at the hearing under review.2"' That being
said, where the testimony amounts to a significant conflict of interest,
an arbitrator can and will disqualify counsel.2 1
In an effort to capture a snapshot of how advocates actually
function as witnesses in labor arbitrations, I interviewed twelve labor
arbitrators or advocates, and held a group interview with seven
hearing examiners (a functional equivalent of labor arbitrators) at a
state labor relations agency. 2° 2 These interviews obviously did not
attempt to capture an empirical snapshot of the practice of advocates
serving as witnesses, but rather sought to identify the range of practice
options available and how the individuals treated the issue when it
arose. The responses below set out a descriptive summary of the
practices reported. The majority of the advocates and arbitrators
eds., 1995).
198. In re Soc. Sec. Admin., Field Assessment Office, 80 Lab. Arb. Rep. (BNA)
1372, 1377 (1983) (Crane, Arb.).
199. Local Union No. 9 of the Int'l Union of Operating Eng'rs, 210 N.L.R.B. 129,
129 n.1 (1974) (denying motion to strike testimony of charging counsel) (citing French
v. Hall, 119 U.S. 152, 154 (1886)); see also Adolph Coors Co. & Brewery, Bottling,
Can & Allied Indus. Union, Local 366, 235 N.L.R.B. 271, 273 n.4 (1978) (rejecting
request that testimony of respondent's attorney be stricken as violation of ABA code
and noting that attorney was the most credible of the three witnesses who testified on
the issue).
200. See NLRB v. G&T Terminal Packaging Co., 246 F.3d 103, 109 n.4 (2d Cir.
2001) (stating that where attorney was going to be the sole witness to a "critical issue"
on appeal attorney needed to "either... file an appearance by a new attorney who
could argue the appeal or to submit an affidavit stating that [the lawyer's]
disqualification would work a substantial hardship on the client because of the
distinctive value of the lawyer or [her] firm as counsel in this particular appeal";
timely filing of affidavit sufficient to allow lawyer to proceed (second alteration in
original) (internal quotations omitted)).
201. Cf. In re Edward E. Johnson (Laborers' Int'l Union of N. Am.), Docket No.
99-11D (June 30, 1999), availableat http://www.thelaborers.net/decisions/d99-11.htm
(attorney disqualified because attorney took part in financial transactions that are
integral to charges of financial malpractice).
202. I also posed the query in more informal settings to numerous other advocates
and arbitrators in the labor-management field as I prepared a six page questionnaire
to guide me in the interviews.
practice in the New England region. The group represents a blend of

both public and private sector advocates and arbitrators.
When confronted with the possibility of requiring the testimony of
an attorney in labor arbitration, arbitrators and advocates report a
range of approaches. Only one arbitrator reported requiring the
attorney to have substitute counsel for the entire case if the attorney
was going to serve as a witness. Only one advocate reported a local
culture in which it was customary that the lawyer would step down
from the actual arbitration and bring in substitute counsel.
Much more often the arbitrators and advocates reported that the
issue became a subject of discussion among the participants in the
arbitration as they agreed upon a fair system of proceeding. In these
circumstances, presumably, the issue is one in which a stipulation is
not appropriate or customary. The attorneys and arbitrators
interviewed described an array of approaches designed to have the
attorney continue to serve as the advocate in the proceeding while still
giving the needed testimony. Several arbitrators expressly leave the
issue to the parties to resolve and proceed in the manner the parties
negotiate. Occasionally, the issue is presented as a challenge that the
advocates and arbitrator will discuss as a pre-hearing issue. The
actual resolution falls in a range of approaches. Advocates who know
the issue is going to arise and who have access to co-counsel will bring
co-counsel in to question the advocate for the needed testimony. The
advocate-witness would then resume the advocate role for the
remainder of the hearing. One hearing examiner would encourage
the parties to agree to a continuance to allow the testifying advocate a
chance to bring in co-counsel for that portion of the case. Several
advocates and arbitrators reported that occasionally an advocate
would be sworn and testify in narrative form. Arbitrators expressed
more reservation about this practice than advocates.
Most advocates did not make formal objections to the dual
functioning. When pressed on why, a variety of reasons emerged.
One arbitrator flatly said that the objection would be frivolous
because there is no basis to exclude the testimony if relevant. A more
significant factor, however, appears to be the underlying culture.
Union and management advocates frequently know each other and
come from what one arbitrator described as a "culture of
negotiation." These are both clients and lawyers with ongoing
relationships. Accommodating the advocate-witness in the context of
arbitration allows the participants to discuss and define the values
behind the rule through a process of agreement.
Another factor appears to be the participants' desire for future
flexibility. An advocate who objects today may need to testify next
week. When asked whether the need for testimony was more
common for union or management, the advocates did not have a
consensus. Union lawyers, however, tended to state that the union
side was more likely to need an advocate as witness, and management

tended to state that management was more likely to need the
advocate's testimony. Most arbitrators reported that they worked
with the parties to identify a procedure that allowed the evidence to
come in while giving opposing counsel a fair opportunity to cross-
examine the advocate-witness.
It would be easy to dismiss this pattern by concluding that the legal
ethics rules have less relevance in labor arbitration, but the arbitrators
uniformly agreed that lawyers in arbitrations have an obligation to
comply with the legal ethics rules. They had process obligations to
assure the proceeding met minimal levels of fairness. But the
arbitrators did not appear to view themselves as having any special
role to assure high standards among members of the bar. Their goal is
to assist in the private resolution of this dispute.
The advocates generally recognized that serving as both advocate
and witness posed special challenges. Only one advocate spoke with
current familiarity of Model Rule 3.7. The advocate had adopted a
detailed formal procedure for advising the management client and
seeking written informed consent before proceeding as both advocate
and witness. In the rare case in which this advocate felt that the
advocacy role would be impaired, the lawyer brought in substitute
counsel. More often, the lawyers described thinking about the
advocate-witness issue and concluding that as long as the lawyer could
function effectively as an advocate, the lawyer should proceed to try
the case and also serve as a witness. In effect, the lawyers appear to
have concluded that the labor or management client would suffer a
substantial hardship-delay, increased expense in educating another
attorney, loss of a familiar "partner" in the labor-management
process, heightened formalism-if the lawyer were to withdraw from
the arbitration hearing unnecessarily. The arbitrators, also
inextricably intertwined in this web of ongoing relationships, generally
deferred to that judgment. The participants appeared content with
the result. Several of the advocates and arbitrators talked about the
changed atmosphere in the room when the lawyer stepped out from
behind the table to testify-mostly of joviality, occasionally of
heightened tension.
C. Significance of Informal and Private Context and Shared Culture:

DistinguishingLaborArbitrationFrom Courts
While one can argue that some of the rationales behind the
advocate-witness rule should not apply to labor arbitration, the text of
Model Rule 3.7 appears to apply. °3 One could argue that labor
203. One prominent treatise on arbitration argues that the underlying rationale of
the advocate-witness rule at judicial proceedings does not apply to labor arbitration
because there is less chance for role confusion when the case is tried to an
arbitration is not a "trial" within the meaning of Rule 3.7, but this is a
rather technical distinction and offers weak explanation. It is true that
arbitrations are often referred to as "hearings" and both the rules of
evidence and procedural requirements are more informal than a
court-based trial. However, while labor arbitration is fairly
characterized as an extension of the bargaining process, it nonetheless
asks parties to present testimony in the light most favorable to the
side represented. The adversarial structure is as vibrant in labor
arbitration as in a traditional court trial. The advocates and
arbitrators who were questioned for this article characterized their
arbitration proceedings as trials or hearings. Advocates for each side
take their roles very seriously. They often are "cause" lawyers,
particularly the union attorneys, embracing the position of union
lawyer not just as a job but as a mission. Almost all of the advocates
interviewed knew that there was some rule out there that called into
question whether it was appropriate to serve as a witness in a
proceeding in which they were an advocate.
Labor arbitrations are also tried to an arbitrator, not a jury, so that
the role confusion inherent in serving as advocate and witness is not as
severe. But the ethics rules do not limit their reach to jury trials, but
refer to trials generally.2 4 Even in the arbitration context, the
arbitrators were required to make an assessment about the credibility
of the advocate. The arbitrators expressed different opinions about
whether the advocate is a more or less persuasive witness than the
typical witness. One arbitrator noted that one presumes that an
advocate is generally truthful, which emphasizes the familiar
community in which labor arbitration occurs. Another arbitrator
stated that an advocate's testimony would always have to be viewed
with a cautious eye because of the advocate's self-interest in
presenting favorable testimony.
Labor arbitrations are also different from court proceedings in that
non-lawyers may serve as advocates. This typically occurs when a
union representative "tries" the case on behalf of the union member.
But the fact that both lawyers and non-lawyers serve as advocates
does not explain away the phenomenon of the advocate-witness.
Lawyers and non-lawyers function in advocacy roles in patent actions
and in IRS proceedings.2 'e In each of these areas lawyers must adhere
to the rules of professional responsibility even though non-lawyers
experienced and skilled arbitrator. In addition, because labor arbitrations are private,
there is less "risk of public skepticism from role changing." Fairweather's, supra note
188, at 239.
204. Model Rules of Prof'l Conduct R. 3.7 (1983); Model Code of Prof'l
Responsibility DR 5-101(B) (1980).
205. See, eg., Jack Winter, Inc. v. Koratron Co., 50 F.R.D. 225, 228 (N.D. Cal.
1970) (stating that preparation of a patent application brings into play legal skills even
though non-lawyer patent practitioners may also engage in same function).
functioning in the same role are free of many of the obligations.0 6

Two union advocates interviewed for this article noted that they
jokingly complained to their non-lawyer counterparts about having
the extra burden of worrying about advocate-witness rule concerns.
D. ProtectingRelationshipsin PrivateDispute Resolution
One could explain the more relaxed approach to the advocate-
witness in labor arbitration by noting the differences above.
Collectively, they offer a plausible explanation. But an equally
descriptive-and less technical-reason for the greater flexibility of
dual functioning appears to be the culture of arbitration and the
nature of the clients. Labor arbitration works to protect relationships
in a more thorough and systemic manner than court litigation. The
process assumes an ongoing relationship described in the collective
bargaining agreement and a relatively equal bargaining strength. 207
There is some evidence to suggest that union employees who pursue a
grievance through arbitration are more likely than their non-union
counterparts to intend to stay in the employment relationship.0 8
Scholars have also explored whether labor arbitration has a
therapeutic dimension.2 9
Labor arbitration often involves repeat actors: the union
representative and the corporate attorney presenting their case to an
experienced labor arbitrator approved by each side. Because the
neutrals typically must be agreed upon by both sides, and depend on
this private selection process for their living, the arbitrators have an
incentive to act in a credible manner toward both sides. 10 All
participants are likely to see each other again. As a practical matter,
the attorneys are more likely to be repeat players than an individual
arbitrator or any individual union member.211
206. Id.
207. Paul H. Haagen, New Wineskins for New Wine: The Need to Encourage
Fairness in Mandatory Arbitration, 40 Ariz. L. Rev. 1039, 1052 (1998) ("The entire
process of arbitration in the context of a collective bargaining agreement assumes that
the parties are in an ongoing relationship.").
208. See David Lewin, Grievance Procedures in Nonunion Workplaces: An
EmpiricalAnalysis of Usage, Dynamics, and Outcomes, 66 Chi.-Kent L. Rev. 823, 843-
44 (1990).
209. See generally Roger I. Abrams et al., Arbitral Therapy, 46 Rutgers L. Rev.
1751 (1994).
210. See Murray S. Levin, The Role of Substantive Law in Business Arbitration and
the Importance of Volition, 35 Am. Bus. L.J. 105, 164 (1997) ("Arbitrators appreciate
that continued demand for their services is dependent on their ability to demonstrate
to these astute repeat players that they are able to produce credible outcomes.").
211. See Samuel Estreicher, Predispute Agreements to Arbitrate Statutory
Employment Claims, 72 N.Y.U. L. Rev. 1344, 1355 (1997).
E. ProtectingAttorney-Client Relationshipsfor Middle-Income Clients

One effect of the more relaxed approach to the advocate-witness in
labor arbitrations is to give greater respect to the attorney-client
relationship for middle-class clients in labor arbitration. Unions
function in part as economic institutions to enhance the economic
welfare of their members. They also serve as an opportunity to move
groups of workers into middle-class status, or keep them in that status.
Perhaps most importantly, unions serve as one of the "mediating
bodies"-"the overlooked middle" 2 12 -that help our society define the
relationship between individuals and the larger institutions of
governments and corporations.213 When union and management
negotiate and sign a collective bargaining agreement, they are creating
a system of private law. Arbitration is not an isolated dispute
resolution event among strangers, but one of the procedures agreed
upon by the two entities-union and employer-to help the
individuals within each group come to shared understanding of the
meaning of that law.
The process of arbitration is inextricably bound up with the ongoing
relationship. To treat any actor within this relationship, including
counsel, as fungible would be to deny an essential attribute of the
institution. This is not to suggest that the relationships receive
protection above all other interests. Within this labor arbitration
world, however, relationships are given high respect because it is the
relationship that helps assure the long-term connection between the
parties.
Even this language, however, does not capture the place of
arbitration and the network of relationships on which it is built.
Labor arbitrations often deal "with messy things like personal
relationships and seemingly mundane day-to-day issues."21'4 But issues
surrounding discharge from work-often described as the labor
equivalent of capital punishment-have a huge impact on the life of
the employee.2 15 Seemingly smaller issues- seniority, work
conditions, etc.-are issues that touch the daily lives of the employee.
Labor arbitration and labor representation is one of the few areas
where middle-income clients obtain meaningful access to
representation on a subject critically important to their daily lives.
The process of negotiating and implementing a collective bargaining
agreement, and engaging in arbitration of disputed issues, provides
"an unmatched opportunity to involve people in making and
212. Thomas C. Kohler, The Overlooked Middle. in The Legal Future of Employee
Representation 224,225 (Matthew W. Finkin ed., 1994).
213. See Kohler, supra note 197, at 143.
214. Kohler, supra note 212, at 226.
215. See generally Mary Ann Glendon, The New Family and the New Property
(1981).
982 FORDHAM LAW REVIEW [Vol. 70
administering21 6
the law that most directly determines the details of their
daily lives.
CONCLUSION: COMMENTS ON THIS CHAMELEON RULE
The advocate-witness rule is like a chameleon, changing color to

accommodate the context in which it is applied. In labor arbitration it
functions more like a rule of procedure than an ethics or evidentiary
issue. It typically is a process concern that the arbitrator and
participants manage in a fair manner. This appears to occur because
the culture of arbitration and the web of relationships inherent in the
process make the lawyer an important part of the process. A resort to
formalism would indeed result in a substantial hardship to the client.
Once the practice setting suggests that substantial hardship is, in
effect, presumed, then the issue evolves from an ethics concern to a
procedural one.
In federal court practice the epicenter of concern over the
advocate-witness continues to be an ethics issue, but pushed more
closely to an evidentiary concern by the adoption of the Model Rules.
Because the advocate-witness concern often, but not always, bumps
up against conflict of interest concerns, it makes sense that federal
courts have continued to view the advocate-witness as an ethics issue.
Within that framework, however, the courts have given too little
recognition to the human dimensions of the attorney-client
relationship. Acknowledging the real impact on a long-standing
attorney-client relationship would enrich the balancing test that is
emerging under the Model Rules to determine whether a substantial
hardship is present. And the client should also make a difference.
Clients without significant resources will bear a disproportionate
hardship if their lawyer is disqualified. The very awareness of the real
hardship to clients is likely one reason why this rule is self-executing.
Attorneys attempt to prevent hardship to clients. The somewhat
greater respect for relationships reflected in the Massachusetts
decisions, 27 to the extent that one can draw conclusions from a
handful of decisions, suggests that state courts might be somewhat
closer to the day-to-day lives of lawyers and clients.
The overlap and intertwining of the procedure-evidence-ethics
approaches might suggest that an ethics analysis for advocate-witness
is no longer needed, if it ever was. Federal courts, at least, do not
reflect this cynicism about the ethical dimensions of the advocate-
witness rule. 18 More importantly, just because there is significant
overlap does not take away from the advantages of a multi-sphere
216. Kohler, supra note 212, at 228.

217. See supra Part I.E.3.
218. See supra Part II.B.
approach to the advocate-witness. 219 The multiple approaches allow

the relevant tribunal and lawyers to apply the approach that best
captures the values at stake.' This chameleon rule can assure fairer
treatment of all the relevant actors if applied with culture, context and
clients in mind.
219. Cf. Jean Fleming Powers, Going Too Far to Achieve Harmony, 41 S. Tex. L
Rev. 203, 211 (1999).
220. See Stephen Gillers, What We Talked About When We Talked About Ethics: A
CriticalView of the Model Rules, 46 Ohio St. LJ. 243,248 (1985).
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Fordham Law Review

Volume 70 Issue 3 Article 10

The Advocate as Witness: Understanding Context, Culture and

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Part of the Law Commons

Cover Page Footnote

This article is available in Fordham Law Review: https://ir.lawnet.fordham.edu/flr/vol70/iss3/10

Lawyers and clients have relationships. Courts and regulators

The use of the advocate-witness rule raises many questions. How

witnesses. When the issue comes to the attention of adjudicatory

18. See infra Part II.B.

It is true that this chameleon rule is untidy and sometimes appears

A. Early and Modern JudicialArticulations: Evidentiary and

note 22, at 380.

issue in French v. Hall, in which it strongly stated that "[t]here is

1. The Model Code Approach

judicial treatment of this practice.59 The movement toward rule

voluntarily testify for one's own client if the testimony were

While the Model Code's advocate-witness rules disfavor serving as

follow the imputed disqualification provisions.7 9 Other courts did

firm to the particular case.' In theory, the change in words should

91. See generally Judith A. McMorrow, Establishing National Rules of Lawyer

97. Id. at 1315.

testimony. All of these pressures gives practical reasons why serving

E. InstitutionalConcern & Role Confiision

1. The Emphasis on Roles

The body of federal and Massachusetts court opinions on advocate-

114. See supra note 98 and accompanying text.

in receivership.12 Defense counsel then represented several former

120. Id. at 527.

to uncontested matters, judges take "judicial notice" of facts that are

134. Fed. R. Evid. 201(b), (c).

presentation of his client's case that he testified to facts not in

client's native language of Romanian was not sufficient."'4 A ten-year

finding other counsel to take case on contingency as sufficient to demonstrate

F. UnderstandingCourts' Strident Interpretationof the Advocate-

II. IMPLEMENTING ADVOCATE-WITNESS CONCERNS IN LABOR

A. The Cultureof LaborArbitration

170. The FederalLaw of Attorney Conduct, supra note 3, § 807.01.

contracts providing for arbitration of certain types of grievances."

177. Laura J. Cooper and Dennis R. Nolan, Labor Arbitration: A Coursebook 15

traditional court adjudication. 85 An arbitrator "does not sit to

management community that entered into the collective-bargaining

practice in the New England region. The group represents a blend of

side was more likely to need an advocate as witness, and management

C. Significance of Informal and Private Context and Shared Culture:

functioning in the same role are free of many of the obligations.0 6

E. ProtectingAttorney-Client Relationshipsfor Middle-Income Clients

CONCLUSION: COMMENTS ON THIS CHAMELEON RULE

The advocate-witness rule is like a chameleon, changing color to

216. Kohler, supra note 212, at 228.

approach to the advocate-witness. 219 The multiple approaches allow

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