Robert L. Kehr Re: Proposed changes to Model Rule 3.7 (public comment draft, dated April 17, 2000) - Center for Professional Responsibility

STATE BAR OF CALIFORNIA

STANDING COMMITTEE ON
PROFESSIONAL RESPONSIBILITY AND CONDUCT

July 27, 2000

American Bar Association
Commission on the Evaluation of the
Rules of Professional Conduct
Attention: Susan Campbell
541 North Fairbanks, 14th Floor
Chicago, IL 60611

Re: Proposed changes to Model Rule 3.7 (public comment draft, dated April 17, 2000)

Dear Commissioners:

I write on behalf of the State Bar of California's Standing Committee on Professional Responsibility and Conduct ("COPRAC"), whose activities are funded in part by the Foundation of the State Bar of California. COPRAC offers the following comments on this draft rule:

We request that the Commission reconsider its approach to the advocate-witness rule (Rule 3.7) and adopt California's approach under California Rule of Professional Conduct 5-210, which allows a lawyer to "act as an advocate before a jury which will hear testimony from the" lawyer so long as the lawyer "has the informed written consent of the client."

Although rule 3.7, which allows a lawyer to act as an advocate where the lawyer will be a necessary witness if "the disqualification would work substantial hardship on the client," would allow the lawyer to testify in at least some situations where the lawyer is an advocate-witness, we believe the "prejudice" standard does not hit the key issue. Instead, we recommend the California rule, which we believe has a better approach. California places the decision-making authority for allowing an advocate-witness squarely with the client, the person likely to be prejudiced by the lawyer acting in a dual role. Indeed, in approving the adoption of Rule 2-111(A), the predecessor to Rule 5-210, the California Supreme Court overruled its own decision in Comden v. Superior Court (1978) 20 Cal.3d 906, 576 P.2d 971, 145 Cal.Rptr. 9, where it had taken the same "substantial hardship" approach of rule 3.7.

Although paragraph (b) would still allow another lawyer in the attorney-witness's firm to act as an advocate in the matter, the client would still lose her preferred lawyer's services if the attorney-witness is a sole practitioner. We believe the client should not lose the attorney of her choice simply because of the size of her lawyer's firm. Moreover, merely allowing another lawyer in the firm to represent the client does not remove the potential prejudice to the client. See Comden, supra, 20 Cal.3d at 912, 576 P.2d at 973, 145 Cal.Rptr. at 11 ("While the harm recedes when the attorney-witness is not himself trial counsel but only a member of trial counsel's firm, the opportunity still exists for opposing counsel to argue the attorney-witness' stake in the litigation through his law firm influences his objectivity.") While paragraph (b) does not allow another lawyer in the firm to act as advocate if "precluded from doing so by ... Rule 1.7," presumably the client could consent under Rule 1.7 to allow the representation. The client should not be precluded from having the lawyer of her choice simply because of the size of the lawyer's firm.

In Smith, Smith and Kring v. Superior Court (1997) 60 Cal.App.4th 573, 70 Cal.Rptr.2d 507, the California Court of Appeal discussed the change from the standard set forth in the Comden case to the current standard found in Rule 5-210. In Smith, the court observed that the standard on attorney-witnesses has been "liberalized" by Rule 5-210 and that "the State Bar [of California] has concluded that a fully informed client's right to choice of counsel outweighs potential conflict or threat to trial integrity posed by counsel's appearance as witness." ( Smith, supra, 60 Cal.App.4th at 579, 70 Cal.Rptr.2d at 510.) Smith also identified two policy reasons favoring a liberalized standard based on a client's informed consent.

First, the right to counsel of choice "ought not to be abrogated in the absence of some indication that the integrity of the judicial process will otherwise be injured," that disqualification of counsel of choice imposes a "substantial hardship" on an "innocent client, who must bear the monetary and other costs of finding a replacement," and that a client's informed consent to her attorney's dual capacity as advocate and witness must be given "great weight." ( Smith, supra, 60 Cal.App.4th at 580-581, 70 Cal.Rptr.2d at 511.)

Second, the liberal client consent standard lessens the prospect of tactical motions to disqual ify. When counsel is "freely able to disqualify opposing counsel simply by calling them as witnesses," it poses the "very threat to the integrity of the judicial process that motions to disqualify purport to prevent." ( Smith, supra, 60 Cal.App.4th at 581, 70 Cal.Rptr.2d at 511.)

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