By Roy Simon [Originally published in NYPRR November 2009]
This month’s column, which continues my series of columns on the new New York Rules of Professional Conduct, covers Rules 3.7, 3.8, and 3.9.
Rule 3.7(a): Advocate as Witness
Rule 3.7(a), which generally prohibits a lawyer from serving simultaneously as both advocate and witness in the same matter before a tribunal, preserves much of former DR 5-102(A) and (C), but Rule 3.7(a) simplifies the rule and adds a few small twists. Rule 3.7(a) provides as follows:
(a) A lawyer shall not act as advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact unless:
(1) the testimony relates solely to an uncontested issue;
(2) the testimony relates solely to the nature and value of legal services rendered in the matter;
(3) disqualification of the lawyer would work substantial hardship on the client;
(4) the testimony will relate solely to a matter of formality, and there is no reason to believe that substantial evidence will be offered in opposition to the testimony; or
(5) the testimony is authorized by the tribunal.
This is a simpler formulation than the Code version because it combines in a single section the prohibitions stated in DR 5-102(A) (which provided that a lawyer shall not “act, or accept employment that contemplates the lawyer’s acting,” as both an advocate and a witness on a significant fact) and DR 5-102(C) (which imposed the same prohibition if the lawyer learned or it became “obvious” to the lawyer after undertaking employment that the client was likely to call the lawyer as a witness on a significant fact). The simplification is welcome. The old formulation made it one of the most difficult rules in the Code to understand.
The policy behind the advocate-witness rule is to avoid confusion on the part of the fact finder, minimize prejudice to adversaries, and avert conflicts between attorney and client. Comments  and  to Rule 3.7 elaborate on this policy as follows:
 Combining the roles of advocate and witness can prejudice the tribunal and the opposing party and also can create a conflict of interest between the lawyer and client.
 The tribunal may properly object when the trier of fact may be confused or misled by a lawyer’s serving as both advocate and witness. The opposing party may properly object where the combination of roles may prejudice that party’s rights in the litigation. A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof. The requirement that the testimony of the advocate-witness be on a significant issue of fact provides a materiality limitation.
The Second Circuit recently neatly summarized the policies driving the advocate-witness rule in In Re MetLife Demutualization Litigation, (2d Cir., Sept. 29, 2009), in which the court stated:
We have identified four risks that Rule 3.7(a) is designed to alleviate: (1) the lawyer might appear to vouch for his own credibility; (2) the lawyer’s testimony might place opposing counsel in a difficult position when she has to cross-examine her lawyer-adversary and attempt to impeach his credibility; (3) some may fear that the testifying attorney is distorting the truth as a result of bias in favor of his client; and (4) when an individual assumes the role of advocate and witness both, the line between argument and evidence may be blurred, and the jury confused. These concerns matter because, if they materialize, they could undermine the integrity of the judicial process. [Citations omitted.]
These are serious concerns, but as the Second Circuit’s own language indicates — “might appear,” “might place,” “some may fear,” “may be blurred” — all of the risks are somewhat speculative. Accordingly, the rule contains exceptions to make it flexible. I now turn to the exceptions.
Rule 3.7(a)(1)-(5): Exceptions to the Advocate-Witness Rule
As in DR 5-102(A) and (C), the general prohibition in Rule 3.7(a) is subject to various exceptions. The Code had four exceptions, and Rule 3.7(a) keeps them all (in a revised order), but Rule 3.7(a) simplifies the “substantial hardship” exception and adds one new exception. Regarding substantial hardship, DR 5-102 provided that a lawyer could serve as both advocate and witness despite the rule “if disqualification as an advocate would work a substantial hardship on the client because of the distinctive value of the lawyer as counsel in the particular case.” [Emphasis added.] Rule 3.7(a)(3) preserves the exception but drops the italicized words, providing simply that an advocate may testify if “disqualification of the lawyer would work substantial hardship on the client.” The new formulation avoids litigation over the ambiguous phrase “distinctive value.” Any good reason supporting the substantial hardship argument is now sufficient.
The new exception, found in Rule 3.7(a)(5), permits a lawyer to violate the general prohibition if “the testimony is authorized by the tribunal.” This addition, which was recommended by COSAC, recognizes the inherent authority of a tribunal to supervise the lawyers and proceedings before it. [Cf. Hempstead Video, Inc. v. Inc. Village of Valley Stream, 409 F.3d 127, 132 (2d Cir. 2005), — “The authority of federal courts to disqualify attorneys derives from their inherent power to preserve the integrity of the adversary process.”] The COSAC proposal had added the phrase “with good cause” to this exception. But the Courts removed it, signaling a belief that everything a court does must be for good cause and that no court would authorize testimony without good cause. If only …
Actually, the phrasing of the exception for “authorized” testimony is backwards. A lawyer’s testimony is presumptively “authorized” — a court cannot willy-nilly refuse to allow a party to put on a witness. What needs the court’s authorization is the lawyer’s simultaneous performance of an advocacy role. Thus, the exception really means that a court can authorize a lawyer-witness to be an advocate before the tribunal. Courts long ago decided that an advocate who ought to be a witness on the client’s behalf at trial cannot resolve the conflict by deciding not to testify, because that would be putting the lawyer’s interest in serving as advocate above the client’s interest in presenting all helpful testimony. Therefore, a lawyer who ought to testify on the client’s behalf must give up the advocacy role, not the witness role. But in practice, no doubt the exception will be interpreted to mean that if a court authorizes an advocate to testify pursuant to Rule 3.7(a)(5), the lawyer may continue playing the role of advocate.
But what might move a court to authorize testimony by a lawyer on a significant issue of fact even though the lawyer is also acting as an advocate in the matter? One reason might be that disqualification would cause delay and disruption in the court system. The delay might be unfair to the opposing party, and disqualification might disrupt a jury trial and inconvenience the jurors or require starting the trial over. Another reason might be to penalize the moving party for waiting too long to bring the motion.
Overall, the structure of Rule 3.7(a) is partially redundant. The lead-in language of Rule 3.7(a) prohibits an advocacy role for a lawyer who is likely to be a witness on a “significant issue of fact.” Thus, the rule does not even reach lawyers who are likely to testify about factual issues that are not “significant.” Nevertheless, two of the exceptions concern testimony about issues that seem insignificant — “uncontested” issues, and matters of “formality” on which the opposition is unlikely to offer any substantial evidence. (These two categories themselves are barely different — they could be called “uncontested” and “barely contested.”) A third exception — “the nature and value of legal services rendered in the matter” — will also often be uncontested or a matter of formality without substantial opposition. Thus, even if the Rule did not include those exceptions, Rule 3.7(a) would seldom prohibit testimony about them because the testimony would not be on a “significant” issue.
The remaining two exceptions are different. If disqualification “would work substantial hardship on the client” or if for any other reason the testimony is “authorized by the tribunal” (e.g., penalizing laches, avoiding trial delay), then a lawyer who is serving as an advocate in the matter may testify even as to a “significant issue of fact.” Courts therefore have enormous leeway to deny motions to disqualify even where the basic prohibition of Rule 3.7(a) applies.
The most interesting difference between Rule 3.7(a) and old DR 5-102 is that Rule 3.7(a) no longer distinguishes between an advocate who ought to be called as a witness in favor of a client and an advocate who may be called as a witness against the client, and no longer distinguishes between testimony that will be or may be “prejudicial” to the client and testimony that will not be prejudicial. The only test in Rule 3.7(a) is whether the advocate is likely to be a witness on a “significant issue of fact,” no matter which side intends to call him as a witness and no matter what the content of the testimony. This means that a lawyer is presumptively disqualified from serving as an advocate if his testimony is on a “significant issue” whether or not his testimony will or may be prejudicial to the client.
Does it make sense to eliminate prejudice as an essential factor? Yes, it makes sense in light of the exceptions for substantial hardship and for testimony authorized by the court. By disqualifying every witness on a significant issue of fact from serving as an advocate in the same case, we eliminate the need to inquire into prejudice in every instance where the advocate will be called as a witness against the client. That inquiry often was not necessary in any event. A party usually will not call the opposing lawyer as a witness unless the lawyer’s testimony would be unfavorable (prejudicial) to the lawyer’s client. But sometimes the opposing party does try to create a conflict under the advocate-witness rule by asserting that it intends to call the opposing lawyer as a witness on a significant issue of fact. Under the Code, this was a serious problem. Pursuant to DR 5-102(D), if the court concluded that the opposing lawyer was a necessary witness and that the lawyer’s testimony would or even might be prejudicial to the opposing lawyer’s client, the literal language of the rule disqualified the lawyer from continuing to serve as advocate unless his disqualification as an advocate “would work a substantial hardship on the client because of the distinctive value of the lawyer as counsel in the particular case.”
Under Rule 3.7(a), the exceptions give the court greater power and allow the court to make a more nuanced assessment of the situation. Substantial hardship to the client that would result from disqualifying the advocate-witness as an advocate need no longer be based on the lawyer’s “distinctive value,” a test that was not easy to meet. Moreover, even if disqualifying the advocate-witness would not create substantial hardship for his client (meaning that the exception would not apply and the court would have to disqualify the lawyer-witness from serving as advocate), the court can authorize the lawyer to play a dual role (testify and advocate) based on its inherent power. That opens the way for the court to take prejudice into account as a factor, and to balance: (1) possible prejudice to the advocate-witness’s client if the lawyer testifies and continues as advocate, against (2) delay and other harms to the court system if he testifies but is disqualified from continuing to serve as an advocate. Prejudice is still a factor, but it is just one of many factors the court can consider, not the only factor. Thus, the new “authorized” exception gives a court a wider range of reasons to deny a motion to disqualify based on Rule 3.7 and makes it easier for a court to thwart an adversary’s scheme to disqualify an opposing lawyer on advocate-witness grounds.
Another interesting feature of Rule 3.7(a) is that it apparently prohibits a likely witness on a significant issue of fact from serving as an advocate at any phase of the proceedings before a tribunal, not just at trial. COSAC, following ABA Model Rule 3.7(a), had proposed barring a lawyer-witness from acting as an advocate “at trial” but the Courts changed the words “at trial” to “before a tribunal.” That change would seem to bar a lawyer-witness from arguing a motion in the matter unless one of the exceptions applies. At first glance, that seems harsh. But one of the exceptions is that “the testimony is authorized by the tribunal.”
A third interesting feature of Rule 3.7(a) is that it disqualifies every advocate before a tribunal who is likely to be a witness on a significant issue of fact, not just a lawyer who is likely to be a “necessary” witness. COSAC had proposed, following both the thoughtful ABA model and a long line of New York state and federal case law, that the rule should disqualify a lawyer from serving as advocate at a trial if the lawyer is likely to be a “necessary” witness at that trial. The Courts crossed out the word “necessary.” Will that make a difference? Probably not. The old Disciplinary Rule did not include the word “necessary” and yet courts consistently denied motions to disqualify unless a lawyer would be a necessary witness on one side or the other. I expect that courts will continue to impose that gloss on the new rule. When the Courts struck the word “necessary” from COSAC’s proposal, they were not so much disapproving the word “necessary” as they were reaffirming that they want to preserve as much of the old tried-and-true Code as possible. If it ain’t broke, don’t fix it. Therefore, although the word “necessary” didn’t make it into the text of the rule, it remains in the case law. And a court can always authorize the testimony under Rule 3.7(a)(5) if the other exceptions do not apply.
Rule 3.7(b): Imputation of Advocate-Witness Conflicts
So far we have been discussing the disqualification of a lawyer-advocate who is also likely to be a witness on a significant issue of fact in the same matter. That is the province of Rule 3.7(a). Now we turn to the issue of imputed disqualification, which is covered by Rule 3.7(b), as follows:
(b) A lawyer may not act as advocate before a tribunal in a matter if:
(1) another lawyer in the lawyer’s firm is likely to be called as a witness on a significant issue other than on behalf of the client, and it is apparent that the testimony may be prejudicial to the client; or
(2) the lawyer is precluded from doing so by Rule 1.7 or Rule 1.9.
This differs significantly from both old DR 5-102(B) and (D) and the COSAC proposal. COSAC had proposed, following the ABA model, a one-sentence version of Rule 3.7(b) that said: “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 Rule 1.7 or Rule 1.9.” That proposed formulation of imputed disqualification made a lot of sense. As already suggested, the policies behind the disqualification of the advocate-witness himself are somewhat speculative. We don’t really know whether a jury will be confused or an adversary will be prejudiced or an advocate will embellish his testimony — and if the dual role as lawyer-witness will create a conflict under Rule 1.7 or 1.9, then those rules can take care of the conflict on their own and the lawyer-witness rule adds nothing to the analysis in those circumstances.
When the witness is not the advocate himself but rather the advocate’s partner or associate, the policies underlying the advocate-witness rule are even more speculative. The Second Circuit addressed this in In Re MetLife Demutualization Litigation, (2d Cir., Sept. 29, 2009), supra. After laying out the four concerns that Rule 3.7(a) is designed to alleviate (see above), the court said:
In imputation cases (Rule 3.7(b)), the witness is not acting as trial counsel; these concerns are therefore “absent or, at least, greatly reduced.” Accordingly, disqualification by imputation should be ordered sparingly, and only when the concerns motivating the rule are at their most acute.
Therefore, we now hold that a law firm can be disqualified by imputation only if the movant proves by clear and convincing evidence that [A] the witness will provide testimony prejudicial to the client, and [B] the integrity of the judicial system will suffer as a result. This new formulation is consistent with our prior efforts to limit the tactical misuse of the witness-advocate rule. [Emphasis added; citations omitted.]
(The Second Circuit helpfully added that “prejudice” in the context of Rule 3.7(b) means testimony that is “sufficiently adverse to the factual assertions or account of events offered on behalf of the client, such that the bar or the client might have an interest in the lawyer’s independence in discrediting that testimony.”)
When the advocacy is not at trial but rather in a motion or other proceeding “before a tribunal,” as New York’s rule provides, the policy justification nearly disappears. Is a judge really likely to be confused, or an adversary disadvantaged, if an advocate argues a motion even though her partner may later be a witness in the same matter? Highly doubtful, especially since a judge presiding over pre-trial or post-trial proceedings is usually acting as an arbiter of law, not a finder of fact.
It was therefore surprising that New York’s Courts rejected the COSAC/ABA formula and added back language based closely on old DR 5-102(B), which prohibited a lawyer and the lawyer’s firm from accepting a case where “another lawyer in the lawyer’s firm may be called as a witness on a significant issue other than on behalf of the client, and it is apparent that the testimony would or might be prejudicial to the client.” [Emphasis added.] Rule 3.7(b)(1) presumptively prohibits a lawyer from acting as advocate before a tribunal if “another lawyer in the lawyer’s firm is likely to be called as a witness on a significant issue other than on behalf of the client, and it is apparent that the testimony may be prejudicial to the client.” Perhaps Rule 3.7(b)(1) is slightly harder for the moving party to satisfy than DR 5-102(B) in one respect (the new rule uses “likely” to be called as a witness instead of “may”), but essentially it is a reprise of DR 5-102(B)).
Why did the Courts restore this approach? I do not know. Perhaps the Courts feared that a lawyer would protect the testifying lawyer by failing to attack the expected testimony from the non-advocate partner or associate, or by dropping or downplaying certain meritorious claims to avoid the need for the partner’s or associate’s testimony entirely. But those are standard-issue personal-interests conflicts already covered by Rule 1.7(a) — we don’t need Rule 3.7 to police them. Nevertheless, the Courts have adopted the rule and we have to live with it.
To compound the problem, Rule 3.7(b) does not state any exceptions. The lack of exceptions presents a frightening prospect for any lawyer considering whether to accept employment to litigate a dispute over a transaction that other lawyers in the lawyer’s firm put together. The client may strongly desire that the same firm handle the litigation, since the firm is already highly familiar with the facts, the client’s business, and the adversary. (Indeed, the client may want the transactional lawyers to handle the litigation, which would raise a Rule 3.7(a) problem, but in large firms the transactional lawyers usually are not litigators, so they hand off the matter to the Litigation Department, creating potential problems under Rule 3.7(b)).
This creates a dilemma. Whenever a lawyer handles litigation arising out of a transaction that the litigator’s firm negotiated, the risk is great that another lawyer in the firm is “likely” to be a witness on a significant issue at trial, and it is difficult to rule out at the outset of the litigation the possibility that the testimony of the other lawyers in the litigator’s firm “may” be prejudicial to the client. If those two conditions are met, then it is a violation of Rule 3.7(b)(1) to take the case. Should the litigator honor the client’s desire to stick with the same firm, or does Rule 3.7(b)(1) pose too great a risk? After all, no lawyer wants to embark on an engagement that would violate the Rules of Professional Conduct and risk tarnishing the lawyer’s reputation. And no lawyer wants to embark on litigation only to be disqualified in the middle of the case based on an imputed advocate-witness conflict.
This is a tough dilemma. The law and economics approach championed by Judge Richard Posner teaches that making rules too harsh frightens people and thereby discourages socially useful behavior. Disqualification is a harsh penalty, so it will deter some lawyers from serving as litigators regarding transactions that their own partners and associates put together. Are we discouraging socially useful behavior? In other words, is it socially useful for lawyers to serve as advocates in disputes over transactions in which their own partners and associates are likely witnesses?
There are some benefits to allowing the same firm that handled the transaction to handle the litigation. A client may want litigators from the same firm that did the deal because the firm has knowledge about the deal and its background, as well as about the client ‘s particular business and its personnel. That may simultaneously increase the law firm’s expertise and decrease legal costs. Also, the litigators have a strong incentive to be zealous advocates so that they can vindicate the way that their own firm’s deal lawyers structured and papered the transaction.
On the other hand, the litigators in a large Wall Street firm are unlikely to know much more about the facts of a particular transaction before the dispute arises than the litigators in a firm across town. Moreover, even if the litigators discover or suspect that their own firm’s transactional lawyers flubbed a deal and exposed the client to serious damages or other harms, the litigators may turn a blind eye and fail to investigate the firm’s own lawyers aggressively within the firm. The litigators may also underplay or hide the firm’s misdeeds to avoid insulting their own partners, damaging their firm’s reputation for transactional skill, and exposing the firm to a malpractice suit. And litigators who are in effect defending the actions of their own transactional partners almost never recommend that the client sue the firm itself for legal malpractice. These are all serious personal-interest conflicts under Rule 1.7(a)(2) — and thus covered by Rule 3.7(b)(2), but lawyers who want to protect their partners (and their firm’s bottom line) often will not bring these conflicts to the attention of their clients — and the clients on their own may not perceive the conflicts or may ignore them to avoid the hassle (the transaction costs) of changing firms. Lawyers from a different firm would generally be free of these conflicts in the first place and would be much more likely to view the entire dispute with an objective eye, casting blame on the lawyers who did the deal if the facts led them there, and recommending a legal malpractice claim against those lawyers and their firm if warranted.
But in relatively small law firms where lawyers handle both litigation and transactions or where the litigators and the transactional lawyers are intimately familiar with each other’s matters, using the same law firm may indeed save the client substantial legal fees and preserve a much better relationship with the client than any new firm could develop. A family business, for example, may use the same handful of lawyers in a small law firm for nearly all of the company’s matters so that the lawyers at the firm know all of the key decision makers and all of the company’s important business matters. In that situation, allowing a client to use the same law firm to litigate a dispute over a transaction that the firm handled might be justified in terms of saving costs or preserving relationships. The same conflicts would often exist — indeed, a lawyer in a small firm would probably be less likely than a lawyer in a big firm to investigate or attack his own partners — but the client may have more to gain by maintaining the relationship with the firm than suing it, so the client should be allowed to take that gamble.
On balance, a harsh advocate-witness rule will generally be justified, so if another lawyer in the litigator’s firm is likely to be called as a witness on a significant issue other than on behalf of the client (which will often be the case when the litigator’s transactional partners structured and papered the deal) and it is apparent that the testimony may be prejudicial to the client (especially if the documents prepared by the transactional partners do not adequately protect the client), then the firm nearly always ought to be disqualified from defending the transactional lawyers who did the deal. In other words, the rule basically gets it right: if your own partner or associate is “likely” to give testimony that “may” be prejudicial, then the law firm ought to decline the case at the outset or as soon as it senses the problem. The client will usually be better off with a different law firm that has no dog in the race — a firm that does not have to face the difficult choice between protecting the client’s interests and protecting the law firm’s interests.
But should there be no exceptions? COSAC did not recommend any exceptions because COSAC’s proposed rule was permissive except when the representation was barred by Rule 1.7 or Rule 1.9. When the Courts sua sponte changed to a rule that generally prohibited lawyers from serving as advocates in cases where their partners or associates were likely to be helpful witnesses for the other side, the Courts could have added exceptions but they did not. For example, the Courts could easily have added a clause that said, “unless the representation would be permitted by the exceptions in Rule 3.7(a)(1)(5).” The Courts did not add that language. Does that mean the Courts opposed any exceptions? Or was the failure to create exceptions an oversight? Or are the exceptions simply implied? We cannot know because the Courts deliberated secretly and did not issue any explanation of what they did. My own instinct is that courts faced with motions to disqualify based on Rule 3.7(b) will look to the exceptions in Rule 3.7(a) for guidance. If the testimony relates solely to an uncontested issue, or relates solely to the nature and value of legal services rendered in the matter, or relates solely to a matter of formality, and there is no reason to believe that substantial evidence will be offered in opposition to the testimony, then the court can say with confidence that the testimony will not be prejudicial to the client of the lawyers who are facing disqualification. And if the testimony “may be prejudicial,” I think courts will still look at all of the facts and circumstances and deny motions to disqualify when “the disqualification of the lawyer would work substantial hardship on the client” per Rule 3.7(a)(3), or when for other good cause “the testimony is authorized by the tribunal” per Rule 3.7(a)(5).
My instinct is supported by the hostility and the skepticism about prejudice that the Second Circuit displayed toward advocate-witness disqualification motions under Rule 3.7(b) in In Re MetLife Demutualization Litigation, (2d Cir., Sept. 2009), supra. The advocate-witness problem came to the forefront after “last-minute settlement negotiations” failed and the plaintiffs moved to disqualify Debevoise. The Second Circuit noted that the motion was filed “more than nine years after the action was commenced, more than two years after the court ruled that plaintiffs were clients of Debevoise, and five weeks before trial.” The district court granted the motion to disqualify, but the Second Circuit reversed. At the very outset of its analysis, the Second Circuit expressed skepticism about motions to disqualify based on Rule 3.7. Quoting from Lamborn v. Dittmer, 873 F.2d 522, 531 (2d Cir. 1989) — a case decided when the advocate-witness rule was still split between DR 5-101(B)-(C) and DR 5-102(A)-(B) — the MetLife court said:
Rule 3.7 lends itself to opportunistic abuse. “Because courts must guard against the tactical use of motions to disqualify counsel, they are subject to fairly strict scrutiny, particularly motions” under the witness-advocate rule. The movant, therefore, “bears the burden of demonstrating specifically how and as to what issues in the case the prejudice may occur and that the likelihood of prejudice occurring [to the witness-advocate’s client] is substantial.”… [T]he showing of prejudice is required as means of proving the ultimate reason for disqualification: harm to the integrity of the judicial system. [Citations omitted.]
And woe especially to a litigator who waits until the eve of trial (or even the middle of discovery) to bring a motion under Rule 3.7(b). In MetLife, after it had provided several substantive reasons for denying disqualification, the court expressed its displeasure with long-delayed disqualification motions, stating [with emphasis added]:
[P]laintiffs’ lengthy and unexcused delay in bringing its motion to disqualify weighs against disqualification. When plaintiffs filed this lawsuit in 2000, they knew that Debevoise had represented MetLife during demutualization and that it would continue to represent MetLife in this litigation. But plaintiffs did not move to disqualify even when, seven years later, the district court ruled that plaintiffs were clients of Debevoise. Instead, plaintiffs waited until after settlement negotiations broke down, five weeks before trial was scheduled to begin, to finally file their motion.
Plaintiffs’ delay, which suggests opportunistic and tactical motives, magnifies the harms to the judicial system that already inhere in any disqualification by imputation, abuse the expectations of jurors, and has the general tendency to impair rather than promote confidence in the integrity of the judicial system.
This language is significant, especially in context. The context is that the Second Circuit seldom hears an appeal from a motion to disqualify. (Disqualified lawyers and their clients have had no right to appeal these rulings since the early 1980s.) The fact that the court heard the case at all indicates its desire to quash any possible inclinations of trial courts to grant Rule 3.7 motions to disqualify liberally. The court’s reasoning, as outlined above, is equally instructive. The overall message is clear: Courts in the Second Circuit are unlikely to grant motions to disqualify under Rule 3.7(b). Exceptions or not, the courts will find a way to deny these motions.
The prohibition in Rule 3.7(b)(2), which prevents a lawyer from acting as advocate if the lawyer is precluded from doing so by Rule 1.7 or Rule 1.9, is a puzzle. As written by the Courts, Rule 3.7(b)(2) is not conditioned on whether another lawyer in the advocate’s firm will testify as a witness. If we skip over Rule 3.7(b)(1), which appears to be a distinct and independent exception, then Rule 3.7(b) says: “A lawyer may not act as advocate before a tribunal in a matter if the lawyer is precluded from doing so by Rule 1.7 or Rule 1.9.” This adds nothing whatsoever to Rules 1.7 and 1.9, and says nothing explicit about the advocate as witness or the advocate’s partner or associate as witness, prejudicial or otherwise. It applies equally whether the advocate himself is a likely witness (thus completely overlapping Rule 3.7(a)) or another lawyer in the advocate’s firm is likely to be a witness. What is this language doing in the advocate-witness rule?
My best guess is that the Courts, in their haste to issue the new Rules of Professional Conduct before Chief Judge Kaye retired on Dec. 31, 2008, made a formatting mistake. (The new Rules were announced on Dec. 16, 2008.) I think Rule 3.7(b) should be formatted as follows:
(b) A lawyer may not act as advocate before a tribunal in a matter if another lawyer in the lawyer’s firm is likely to be called as a witness on a significant issue other than on behalf of the client, and:
(1) it is apparent that the testimony may be prejudicial to the client; or
(2) the lawyer is precluded from doing so by Rule 1.7 or Rule 1.9.
That format makes more sense. The lead-in language parallels Rule 3.7(a) and focuses on “another lawyer in the lawyer’s firm” rather than the lawyer-advocate personally. The first exception remains unchanged (because it is already tied to testimony by “another” lawyer in the advocate’s firm) but the second exception is now dependent on the likely testimony of another lawyer in the advocate’s firm. It still adds nothing of substance to Rule 1.7 or 1.9 — it does not create any new grounds for conflicts or diminish any of the existing grounds — but it should remind lawyers to consider the kinds of conflicts I described above in discussing whether lawyers ought to litigate disputes over transactions that other lawyers in their firm negotiated and documented.
Let’s apply Rule 1.7(a)(2), which comes into play whenever there is “a significant risk that the lawyer’s professional judgment on behalf of a client will be adversely affected by the lawyer’s own financial, business, property or other personal interests.” Suppose a litigator would be tempted to favor his own partner’s reputation or business-getting ability or standing within the firm, over the client’s interest in determining whether a counterparty has the right to repudiate or breach or narrowly interpret a contract drafted by the partner. In that situation, Rule 1.7 would prohibit the representation unless, pursuant to Rule 1.7(b), “(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client” and “(4) each affected client gives informed consent, confirmed in writing.” That will at least bring the potential problems to the surface and ensure that the client can make a considered choice about whether to stay with the firm that drafted the contract or instead hire a new firm to investigate and prosecute the matter.
What about activities outside of court by lawyers who are disqualified from serving as in-court advocates (i.e., advocates “before a tribunal”)? May the disqualified lawyers assist successor counsel with discovery, strategy, or other pretrial activities, or may they assist during trial? In most instances, yes. Comment  to New York Rule 3.7 says, in relevant part:
 … [U]nless Rules 1.7 or 1.9 preclude it, the nontestifying lawyer and the testifying lawyer may continue to represent the client outside of the tribunal, with the client’s informed consent, in pretrial activities such as legal research, fact gathering, and preparation or argument of motions and briefs on issues of law, and may be consulted during the trial by the lawyer serving as advocate.
This means that the litigators in the original firm may assist successor counsel if the client consents (which the client will usually do, unless the client suspects malpractice by the original firm at the outset), and the transactional lawyers in the original firm may also assist. Of course, the lawyers serving as advocates must abide by Rule 3.4(b) when consulting with the lawyers who negotiated and drafted the contract. Thus, the advocates must not “offer an inducement to a witness that is prohibited by law or pay, offer to pay or acquiesce in the payment of compensation to a witness contingent upon the content of the witness’s testimony or the outcome of the matter.” But they may, under Rule 3.4(b)(1) — as under old DR7-109(C)(1) — pay “reasonable compensation to a witness for the loss of time in attending, testifying, preparing to testify or otherwise assisting counsel …” Thus, the lawyers who handled the underlying transaction may ethically be paid their regular hourly rates for the time they spend assisting the advocates before or during trial. See generally N.Y. State Ethics Op. 714 (“Assuming that the compensation to be paid to a lawyer as a witness is not illegal, a fully informed client (or former client) may agree to pay the lawyer reasonable compensation in the amount of the lawyer’s customary hourly rate.”)
The continued fee-generating opportunities for the firm that did the transaction will lessen the blow of disqualification under Rule 3.7, and therefore make it less painful for these law firms to decline a case if other lawyers in the firm are likely to be witnesses on significant fact issues and their testimony might be prejudicial to the client. I think this is the right result, because it allows a client to take advantage of the knowledge and expertise of the original firm while gaining the neutral perspective of a different firm that can follow the facts wherever they lead without stepping on the toes of the new firm’s own partners and associates. That is the best of both worlds.
Rule 3.8: The Improvement the Courts Rejected
Rule 3.8 is entitled “Special Responsibilities of Prosecutors and Other Government Lawyers.” It consists of two subsections, but if the Courts had adopted one of COSAC’s most important recommendations, it would consist of more.
Rule 3.8(a) provides as follows:
A prosecutor or other government lawyer shall not institute, cause to be instituted or maintain a criminal charge when the prosecutor or other government lawyer knows or it is obvious that the charge is not supported by probable cause.
The principle underlying Rule 3.8(a) was well expressed in the first sentence of old EC 7-13, which said: “The responsibility of a public prosecutor differs from that of the usual advocate; it is to seek justice, not merely to convict.” That principle survives in the first sentence of Comment  to Rule 3.8, which says: “A prosecutor has the responsibility of a minister of justice and not simply that of an advocate.”
Rule 3.8(a) is nearly identical to old DR 7-103(A). The only new word in the Rule is the word “maintain,” but that addition is significant. It means that the principle of Rule 3.8 applies even after charges have been “instituted.” For example, suppose a prosecutor obtains an indictment based on probable cause and begins prosecuting criminal charges, but pretrial investigation reveals that the key witness against the defendant lied to the grand jury, and without that witness there is no probable cause to continue the case. DR 7-103(A) did not expressly address that situation because it referred only to the obligation not to “institute” charges without probable cause. Rule 3.8(a) does cover that situation and requires a prosecutor to drop the case, because Rule 3.8(a) expressly makes it improper for a prosecutor to “maintain” criminal charges that are not supported by probable cause.
Rule 3.8(b) is substantially similar to old DR 7-103(B) but adds one important new word (“information”) and a new final clause that creates a new exception. Rule 3.8(b) provides as follows:
(b) A prosecutor or other government lawyer in criminal litigation shall make timely disclosure to counsel for the defendant or to a defendant who has no counsel of the existence of evidence or information known to the prosecutor or other government lawyer that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the sentence, except when relieved of this responsibility by a protective order of a tribunal.
The addition of the word “information” broadens the prosecutor’s duty of disclosure, or at least clarifies that the term “evidence” is intended to include all information, not just items that the defense could offer into evidence at trial. But the final clause may narrow the prosecutor’s disclosure duty by enabling the prosecutor to seek a protective order. Comment [1A] to Rule 3.8 explains that the exception in paragraph (b) “recognizes that a prosecutor may seek an appropriate protective order from the tribunal if disclosure of information to the defense could result in substantial harm to an individual or to the public interest.” That will be a case-by-case determination.
Unfortunately, Rule 3.8 ends with paragraph (b). COSAC had proposed additional paragraphs to give greater meaning to the great principle that a prosecutor’s duty “is to seek justice, not merely to convict.” Specifically, COSAC had proposed adding the following two new paragraphs to protect innocent people who have been wrongly convicted:
(g) When a prosecutor comes to know of new and material evidence creating a reasonable likelihood that a convicted defendant did not commit the offense for which the defendant was convicted, the prosecutor shall:
(1) disclose that evidence to the convicted defendant and any appropriate court or authority; and
(2) undertake such further inquiry or investigation as may be necessary to determine whether the conviction was wrongful.
(h) When a prosecutor comes to know of clear and convincing evidence establishing that a conviction was wrongful, the prosecutor shall take appropriate steps to remedy the wrongful conviction.
These paragraphs were conceived in a lengthy and thoughtful study by the New York City Bar’s Committee on Professional Responsibility. They were honed and refined by COSAC and circulated for public comment. Comments were submitted by the New York District Attorney’s Association, prosecutors from all four federal districts in New York, various individual District Attorneys in New York, and others. COSAC hosted an all-day meeting attended by many prosecutors (as well as defense lawyers and the diverse group of lawyers who make up COSAC), and COSAC consulted with state and federal prosecutors before making the final proposal that was approved by the New York State Bar Association and recommended to the Courts. The ABA House of Delegates voted in February of 2008 to add similar paragraphs to the ABA Model Rules of Professional Conduct. Yet without any explanation, and without any opportunity for public comment, New York’s Courts rejected these provisions.
I hope that one day soon the Courts will reconsider and adopt these well-crafted improvements to Rule 3.8. Prosecutors are rarely brought up on disciplinary charges of any kind, so the purpose of the new provisions is not to punish prosecutors but rather to give sound guidance to prosecutors about what the public expects of them and to make a clear public statement in the Rules of Professional Conduct that our society will not allow innocent people to remain in prison or to bear the scar of a wrongful conviction. Until the Courts adopt these changes, Comments [6B] through [6E] to Rule 3.8 give life to the principles of the rejected paragraphs, which were not adopted but also are not contradicted by the existing black letter text of Rule 3.8.
Rule 3.9: Advocate in Non-Adjudicative Matters
Now (as Monty Python used to say) for something completely different. Rule 3.9, which consists of only one sentence, governs one narrow but important aspect of representing clients in matters involving legislatures or government agencies: the obligation to disclose whether the lawyer is appearing on behalf of a client, rather than on his own behalf or as a public-spirited citizen. The Rule had no counterpart whatsoever in the old Disciplinary Rules, but the first sentence of old EC 8-4 said: “Whenever a lawyer seeks legislative or administrative changes, the lawyer should identify the capacity in which he or she appears, whether on behalf of the lawyer, a client, or the public.” Rule 3.9 narrows the focus to situations in which a lawyer is appearing on behalf of a client. It says:
A lawyer communicating in a representative capacity with a legislative body or administrative agency in connection with a pending non-adjudicative matter or proceeding shall disclose that the appearance is in a representative capacity, except when the lawyer seeks information from an agency that is available to the public. [Emphasis added.]
Comment  to Rule 3.9 explains the rule and its policies succinctly. It says:
 In representation before bodies such as legislatures, municipal councils and executive and administrative agencies acting in a rule-making or policy-making capacity, lawyers present facts, formulate issues and advance arguments regarding the matters under consideration. The legislative body or administrative agency is entitled to know that the lawyer is appearing in a representative capacity. Ordinarily the client will consent to being identified, but if not, such as when the lawyer is appearing on behalf of an undisclosed principal, the governmental body at least knows that the lawyer is acting in a representative capacity as opposed to advancing the lawyer’s personal opinion as a citizen. Representation in such matters is governed by Rules 4.1 through 4.4, and 8.4.
Thus, a lawyer appearing before a Senate committee or a rule-making agency on behalf of a client must say, “I am here as a representative of a client” or “I am appearing in a representative capacity.” The lawyer cannot pretend to be merely an interested public citizen with no axe to grind. Rule 3.9 does not require the lawyer to identify the client — it merely requires a lawyer in a non-adjudicative proceeding before a legislative body or administrative agency to say, “I have a client.”
Rule 3.9 is, however, limited to “non-adjudicative” proceedings. Does this take a lawyer off the hook when a legislative body or administrative agency is acting in an adjudicative capacity? No. As Comment [1A] to Rule 3.9 explains:
[1A] Rule 3.9 does not apply to adjudicative proceedings before a tribunal. Court rules and other law require a lawyer, in making an appearance before a tribunal in a representative capacity, to identify the client or clients and provide other information required for communication with the tribunal or other parties.
One of the laws and court rules governing appearances before a tribunal is Rule 3.3(e), which provides as follows:
In presenting a matter to a tribunal, a lawyer shall disclose, unless privileged or irrelevant, the identities of the clients the lawyer represents and of the persons who employed the lawyer.
Thus, if a legislative body or administrative agency is functioning as a “tribunal,” the lawyer must nearly always disclose the client’s identity. But when is a legislative body or administrative agency functioning as a “tribunal”? A good question — and one answered (at least in the abstract) by Rule 1.0(w), which defines “tribunal” as follows:
“Tribunal” denotes a court, an arbitrator in an arbitration proceeding or a legislative body, administrative agency or other body acting in an adjudicative capacity. A legislative body, administrative agency or other body acts in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a legal judgment directly affecting a party’s interests in a particular matter. [Emphasis added.]
The Comment to Rule 1.0, unfortunately, does not elaborate on this language. But most lawyers will recognize the situation when they see it. And when in doubt as to whether a proceeding before a legislative body or administrative agency is “adjudicative” (making the legislative body or administrative agency a “tribunal” and triggering Rule 3.3(e)) or “non-adjudicative” (making Rule 3.9 the applicable rule), the best policy will be to ask the client for consent to disclose the client’s identity. If the client refuses, the lawyer may ask for a ruling as to whether the legislative body or administrative agency is acting in an adjudicative capacity, and the lawyer will then know which rule to follow.
How broad is the exception for situations when a lawyer is acting on behalf of a client but “seeks information from an agency that is available to the public”? It is as broad as the law requiring a government agency to furnish the information that any member of the public is entitled to receive either anonymously or solely by giving his name. In those situations, the lawyer is not required to disclose whether the appearance is in a representative capacity because the lawyer is not expressing views, answering questions, or otherwise supplying information to the agency. (The exception covers only an “agency,” but it should also apply to requests for information from legislative bodies, like the rest of Rule 3.9.) Thus, if a lawyer asks the Federal Communications Commission to supply reports on punitive actions taken against license holders within the last five years, and if that information is “available to the public” in the sense that any member of the public has a right to obtain that information upon request (including filling out any necessary forms and paying any standard charges), then the lawyer need not disclose whether the lawyer is representing a client.
Next month, I will continue my exploration and analysis of the new New York Rules of Professional Conduct.
Professor Roy Simon is the author of Simon’s New York Rules of Professional Conduct Annotated. The brand new 2015 edition analyzes more than 100 new cases, ethics opinions, and other developments critical to New York practice. It’s the legal ethics bible for all New York-area lawyers. To purchase, click here.
In addition, Professor Simon advises lawyers and law firms on questions of professional conduct and serves as an expert witness in cases raising issues of lawyer conduct. You may reach Professor Simon at 516-463-5289 or Roy.Simon@hofstra.edu.
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