May Counsel be Forced to Testify at Trial by Opposing Counsel?

Per Rule 3.7 of the Tennessee Rules of Professional Responsibility:

(a) A lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness unless:

(1) the testimony relates to an uncontested issue;

(2) the testimony relates to the nature and value of legal services rendered in the case; or

(3) disqualification of the lawyer would work substantial hardship on the client.

(b) A lawyer may act as an advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as a witness, unless precluded from doing so by RPC 1.7 or RPC 1.9.

Courts have repeatedly cautioned, “because of the potential use of the advocate-witness rule for abuse, disqualification is a drastic measure which should not be imposed unless absolutely necessary.”  King v. Pattison, 2013-Ohio-4665 (5^th Dist. Sept. 30, 2013)(trial court abused discretion by disqualifying attorney). A high standard is imposed for disqualification not only because of the potential for abuse, but because it “separates a party from the counsel of its choice with immediate and measurable effect.” Zurich Ins. Co. v. Knotts, 52 S.W.3d 555, 560 (Ky. 2001).

The key inquiry is whether or not the lawyer is a necessary witness at trial. A lawyer is not a necessary witness “if the substance of their testimony can be elicited from other witnesses.” State v. Swift, 2019 Tenn. Crim. App. LEXIS 195, *21 (Tenn.Crim.App. Mar. 28, 2019).  A necessary witness is not just someone with relevant information, but someone who has material information that no one else can provide. Dinardo Seaside Tower, Ltd. v. Sikorsky Aircraft Corp., 153 Conn. App. 10, 49 (2014). “Testimony may be relevant and even highly useful but still not strictly necessary.”   Id.   In fact, the availability of other persons to testify about conversations and events surrounding them means that the attorney is not a necessary witness.Mettler v. Mettler, 50 Conn.Supp. 357 (2007).