Model Rule 3.7

Reporter's Explanation of Changes

TEXT:

No change in substance is proposed in the Rule text.

COMMENT:

[1] A reference to a tribunal has been added to clarify that the prohibition in paragraph (a) is for the protection of the tribunal as well as the parties.

Caption The new caption has been added to better reflect the subject of Comments [2] through [5].

[2] and [3] References to a tribunal have been added to clarify that the prohibition in paragraph (a) is for the protection of the tribunal as well as the parties.

[4] References to a tribunal have been added to clarify that the prohibition in paragraph (a) is for the protection of the tribunal as well as the parties. The last sentence has been modified to emphasize that the advocate-witness rule is distinct from the conflict of interest principles in Rules 1.7, 1.9, and 1.10.

[5] This new Comment explains why paragraph (b) permits a lawyer to act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness, unless precluded from doing so by Rules 1.7 or 1.9.

Caption The new caption has been added to better reflect the subject of Comments [6] and [7].

[6] The changes are intended to clarify that lawyers must be alert to the conflicts that may arise when they serve as an advocate in a matter in which they or a lawyer with whom they are associated is a necessary witness and that, if there is a conflict, it is to be resolved in accordance with Rules 1.7 or 1.9.

[7] This new Comment discusses the vicarious disqualification that may result if the lawyer-witness is precluded from serving as advocate by Rules 1.7 or 1.9.

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