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                                         124 N.J.L.J. 906
                                        October 12, 1989


Appointed by the Supreme Court of New Jersey


Attorney as Witness - Counsel
Asked to Provide Adversary with
Certification Concerning
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:

    EC 5-9 Occasionally a lawyer is called upon to decide in a particular case whether he will be a witness or an advocate. If a lawyer is both counsel and witness, he becomes more easily impeachable for interest and thus may be a less effective witness. Conversely, the opposing counsel may be handicapped in challenging the credibility of the lawyer when the lawyer also appears as an advocate in the case. An advocate who becomes a witness is in the unseemly and ineffective position of arguing his own credibility. The roles of an advocate and of witness are inconsistent; the function of an advocate is to advance or argue the cause of another, while that of a witness is to state facts objectively.

    As to the question whether the actual conduct of the case could be entrusted to another partner in a firm we said:
        In order to serve a useful purpose in responding to this inquiry, we must make the further assumption that the subject matter of testimony by both attorneys in the declaratory judgment action would be as to matters of substance, and not as to mere formalities, and that such testimony would be both relevant and material to the substantive issue projected in that case.
        Now the inquirer suggests that the practice in New Jersey under Canon l9 in similar situations had been that the partner in the firm whose testimony would be required would obviate any ethical problem by entrusting the actual conduct of the case to another partner in the firm. That was not the practice, and if such a practice existed, it was and remains improper both under Canon l9 and DR 5-102(A), unless within the exceptions provided in DR 5-l0l(B). We are asked only to consider subsection (4) of that rule which would permit the dual role where to do otherwise "*** would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case." The inquirer suggests, and we agree, that the standard for this exception lacks objectivity. However, we are not able to discern any circumstances in the facts given to us which suggest that the declaratory judgment case could not be handled by any competent lawyer. If this be so, it is appropriate for both firms to withdraw. [Opinion 233, supra.].

    Here as always in the application of ethical principles to particular situations, if a reasonable man might fairly conclude
that the conduct in question might be to the disadvantage of the client a lawyer should err, if at all, by avoiding that possibility.

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