By Edward McIntyre
Macbeth opened the Zoom meeting. “Good morning Sarah, Duncan. Jeff asked to join us. Anyone mind?”
A joint, “Not at all.”
Clicks, another box opens, a face appears.
“Good morning, Jeff. Meet Sarah and Duncan.”
After greetings, Macbeth spoke. “Jeff, you had questions?”
“Yes. I’ll be a witness in a case. You’ve done it often as an expert. Thought I’d pick your brain. Get some tips.”
“You’ll be an expert?”
“No. I’m the trial lawyer. Also a witness. Representing my daughter, Maddie.”
“Testimony of substance? Not an uncontested issue orabout fees?”
“Oh, it will be substantive, all right. Suing my ex-wife. As a young teen, Maddie announced she was gay. My former harassed and bullied her. Mercilessly. Poor kid! I couldn’t make it stop. Killed the marriage. I got full custody. Legal and physical. Now she’s 19. Recovered, but still traumatized. I’ll be a key witness.”
Sarah interrupted, “I’m so sorry. For her. For you.”
Macbeth spoke. “Before we discuss being a witness, should we focus on rule 3.7?”
“The lawyer-witness rule?”
“Precisely. Since your testimony will be substantive, it applies.”
“Already looked at it. I’ve got Maddie’s informed written consent. Both as her lawyer and a witness at trial. Like rule 3.7(a)(3) requires.”
“As part of that informed consent, you advised her that if your credibility as a witness takes a hit — on cross-examination, for example — it might affect your credibility as her advocate arguing to a jury or judge?”
“She’s a smart kid. I’m sure she understands. Isn’t it obvious?”
“You might consider making it explicit. What’s obvious to us might not be to a 19-year-old, about to sue her mother. I’d think about revising the informed consent.”
“OK, if you think —”
“Did you consider the rule’s Comment 3?”
“About court discretion?”
“Yes. Even with your daughter’s consent, a court could disqualify you from testifying and being the advocate. To protect the trier of fact from being misled. Your wife from prejudice.”
“I don’t see it.”
“You’ll be a key witness? On contested issues? With conflicting testimony?”
“All of that.”
“One purpose of the advocate-witness rule is to prevent fact finder confusion. Is the advocate-witness’s statement to a fact finder proof or argument? Same person. Different roles.”
“But —”
“The rule tries to avoid tying a lawyer’s persuasiveness as an advocate to his credibility as witness. In short, it could harm an opposing party or judicial integrity if a lawyer testifies on a key issue — with conflicting testimony — and then argues to a jury why his testimony is more credible than the other testimony.”
“You mean I could be knocked out at trial?”
“Could. Appellate courts have allowed it. Abuse of discretion is not a difficult standard. You might want to mention it to your daughter. In a revised informed consent. So she’s not surprised.”
“Guess I should. May I see the cases?”
Sarah interjected. “I’ll send you the most recent.”
Macbeth asked, “How long were you married?”
“Sixteen years. The bullying started when Maddie was 13. I moved out after two years. Took her with me. Divorce was final a year later. Why?”
“Be aware there may be a confidentiality issue. Could disqualify you from representing your daughter at all. Not just at trial.”
“What?!”
“During marriage you learned a lot from and about your former spouse that’s confidential. Because of the marriage. Brace yourself for the argument you could exploit that information in suing her.”
“How?”
“Well, you’ve certainly gotten confidential information you could use, for example, drafting discovery requests. Preparing your daughter, other witnesses, for deposition. Preparing deposition outlines. Think about it. You’d have an inside track on the defense case.”
“That could disqualify me?”
“One court disqualified a lawyer who’d gotten the secrets of an adverse party. It implicated the lawyer’s ethical duty to maintain the integrity of the judicial process. Another disqualified a firm to prevent prejudice from the firm’s exploitation of privileged email. It had prepared deposition questions based on the email and quoted it in depositions and interrogatory responses. A court could decide disqualification here is a necessary prophylactic.”
“Wow, I never thought —”
“Jeff, not saying it’ll happen. But think it through. You want to help your daughter. We understand.”
Sarah spoke. “Maybe the best help would be to support her through a difficult case. Be the best witness you can. Let someone not so involved be her advocate. A partner, perhaps.”
“A lot to think about. Thanks. If that’s what I do, may I come back? Talk about how to be an effective witness?”
Macbeth smiled. “We’d welcome it.”
Editor’s Note: The recent case Sarah sent Jeff was Doe v. Yim (2020) 55 Cal.App.5th 573.
Edward McIntyre (edmcintyre@ethicsguru.law) is a professional responsibility lawyer and past co-editor of San Diego Lawyer.