2014-03 | Office of Legal Ethics Counsel & Advisory Committee of the Supreme Court of Missouri



Informal Opinion Number: 2014-03

Rules: 4–3.7

Advocate

Lawyer As Witness

Subject: Lawyer as Witness

Summary: lawyer who may be necessary witness handling pre-trial and other matters

Question: Attorney is Plaintiff and co-counsel of record in a lawsuit that may become a class action, and Attorney may be a necessary witness at trial. May Attorney handle pre-trial matters, sit at counsel table during trial, and listen to arguments and conferences with the judge that are outside of the jury’s hearing?
Answer: If Attorney is likely to be a necessary witness, Rule 4 dash–3.7 prohibits Attorney from acting as an advocate at trial where none of the three exceptions to the rule are present. Attorney should avoid any actions at trial that could mislead or confuse the trier of fact as to Attorney’s role as witness rather than advocate. Participating in arguments and in conferences with the judge or engaging in other trial activity traditionally reserved for attorneys would constitute advocacy prohibited by Rule 4 dash–3.7. The rule does not prohibit Attorney from being an attorney of record in the case.

Informal Opinions are ethics advisory opinions issued by the Office of Legal Ethics Counsel to members of the Bar about Rule 4 (Rules of Professional Conduct), Rule 5 (Complaints and Proceedings Thereon), and Rule 6 (Fees to Practice Law) pursuant to Missouri Supreme Court Rule 5.30(c). Written summaries of select Informal Opinions are published for informational purposes as determined by the Advisory Committee of the Supreme Court of Missouri pursuant to Rule 5.30(c). Informal opinion summaries are advisory in nature and are not binding. These opinions are published as an educational service and do not constitute legal advice.

Request an Informal Opinion.