Update (October 27, 2017): In the case described below, U.S. Magistrate Judge Becky R. Thorson (D. Minn.) has issued an order permitting the deposition of one of Plaintiff’s lawyers (excerpt of order linked here), leaving for another day whether Attorney Vang may be both counsel of record and a witness at trial…
“This lawsuit is about whether Plaintiff Kristin Naca was discharged because she solicited sex from a student prior to graduation and commenced a sexual relationship with the student days after graduation (as Defendant Macalester College contends) or because of discriminatory animus toward her religion, sexual orientation, gender, race, and/or ancestry (as Plaintiff contends).”
Recently, the case raised an interesting issue that comes up from time to time: the problem of a lawyer who is also a fact witness. This causes some obvious problems. It is analogous to “breaking the fourth wall” in theater, where a critical illusion is shattered: lawyers are no longer advocates or “officers of the court” separate and apart from the underlying dispute. They are witnesses, perhaps co-conspirators, etc.
So how will the Court resolve the issue that Ms. Naca’s lawyer, Hlee Vang, appears to be an eye-witness to alleged sexual harassment by another Macalester professor whose supposed wrong-doing did not result in discipline, as Ms. Naca’s did?
The first issue, can Macalester’s lawyers depose Ms. Vang? Later, the question could be whether Ms. Vang can continue to represent Ms. Naca…
In the famous 1971 criminal prosecution of Fielding Melisch for treason, the leftist revolutionary represented himself pro se and was torn apart by his own prosecution of himself. It was a forensic tour de farce caught on film.
Seriously, the challenges and perils of a trial lawyer who is also a witness to the underlying dispute is self-evident. On the other hand, legal disputes about legal disputes are obviously common and not just cases of professional malpractice. There are settlement negotiations that “blow up.” There are other kinds of negotiations involving lawyers that end up in court. The list of scenarios where the lawyer’s role is not strictly confined to an after-the-fact advocate is endless.
While it should be obvious that a trial lawyer cannot normally be a witness and trial lawyer in one case at the same time (see Minn. R. Prof. Conduct 3.7), where do we draw the line at the margins?
Minnesota’s (and other states’) ethical rules mandate:
(a) A lawyer shall not act as 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.
In a 2013 decision of the U.S. District Court for the Eastern District of Wisconsin (Chief District Court Judge William C. Griesbach), the court had to work through Wisconsin’s similar rule to decide whether Wisconsin and Minnesota lawyer, Peter Culp, would represent Plaintiff Steve Olson in his claim against Olson’s former employer, Bemis Company, when Culp was likely to be witness to material facts underlying the dispute.
The court reasoned
the rule against an attorney acting as a witness is intended to avoid jury confusion and possible prejudice to the opposing party if one party’s attorney is permitted to act both as an advocate and a witness….But the jury is usually not privy to pretrial proceedings. If [the objecting party] takes Attorney Culp’s deposition now and Attorney Culp later withdraws or is disqualified, the fact that he represented Olson previously in the action would not have to be conveyed to the jury. In short, … this court does not question the ability of the defendants to meaningfully question Attorney Culp at a deposition even if he is still representing Olson. For practical reasons it may be the better practice…that another lawyer serve as counsel to the client at such a deposition. But there is no requirement that the attorney/witness withdraw.
That sounds about right. A client might very much want to be represented by a lawyer who has the deep knowledge and experience of the underlying facts from first-hand experience. The Fielding Melisch Scenario, however, will not work in the real world. It seems an appropriate balance to permit the client to have his counsel of choice for most of his representation even if dual roles at the eventual trial would be absurd.