124 N.J.L.J. 906
October 12, 1989
Attorney as Witness - Counsel
Asked to Provide Adversary with
Discussions with Party to Action
The inquirer, a sole practitioner, represents tenants who are defendants in a suit seeking to evict the tenants in which the plaintiff-owner is also suing an alleged buyer of the property for breach of the contract to purchase. We are told that the defense of the tenants will in substantial part depend upon testimony of conversations between the inquirer and the defendant-alleged purchaser. Counsel for the plaintiff has demanded of the inquirer his/her "certification" as to those conversations and we are asked whether under such circumstances the inquirer may ethically continue in the matter as counsel for the tenants.
RPC 3.7(a) provides that "A lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness..." (listing three exceptions none of which are applicable here). RPC 3.7(b) provides that "A lawyer may 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 RPC 1.7 or RPC 1.9."
Upon the face of it, the inquirer may not continue as counsel for the tenants upon the facts submitted measured against the standard set forth in RPC 3.7(a). However, RPC 3.7 substantially changes the standards as they existed prior to September 10, 1984 (the effective date of the Rules of Professional Conduct) and consequently overrules prior Opinions of the Committee. These opinions were predicated upon either the Canons of Professional Ethics or the Disciplinary Rules which "deleted" the Canons effective September 13, 1971, and which were themselves "deleted" upon the adoption and promulgation of the Rules of Professional Conduct (see R. l:14). This inquiry affords an opportunity for the Committee to call these substantial changes to the attention of the Bar and to comment thereon.
The notion that a lawyer ought not serve as an advocate in a litigation and also testify as a witness as to contested issues has been persistent in Anglo-American jurisprudence. Wigmore treats the subject with his usual analysis from an historical perspective in his work on Evidence, 3d Ed. §1191. The New Jersey Supreme Court strongly disapproved of such conduct in Callen v. Gill, 7 N.J. 312 (1951), but the cases uniformly hold that this does not go to the admissibility of the testimony; the question presented is said to be purely one of professional ethics.
When we examine the reasons underlying the proscription, it seems clear that at bottom the central concern is with the best interests of the client. When this Committee wrote Opinion 233, 95 N.J.L.J. 206 (1972), it called attention to the "Ethical Considerations" underlying the Rule as it then existed as adopted by the American Bar Association, including: