Commercial Litigation and Arbitration

Ethics — Advocate-Witness Rule Warrants Denial of Pro Hac Vice Application and Exclusion from Representation during Pretrial as Well as Trial Proceedings

From Grant v. Kamehameha Schools, 2009 U.S. Dist. LEXIS 26196 (D. Haw. Mar. 30, 2009):

Hawaii Rule of Professional Conduct 3.7(a) provides:

A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:

(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.


Rule 3.7(a) prohibits lawyers from acting as both advocate and witness because, inter alia, "[i]t may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof." Haw. R. Prof. Cond. 3.7, cmt. 2. The confusion caused by an attorney's dual roles is not limited to live testimony at trial. A trial is "connected as a seamless web to the ascertainment of issues at the pretrial proceedings, and particularly to the discovery depositions." Gen. Mill Supply Co. v. SCA Servs., Inc., 697 F.2d 704, 716 (6th Cir. 1982). The evidence admitted at trial may include depositions that the attorney participated in or declarations and affidavits that he prepared.

The Court acknowledges that some courts have interpreted rules identical to Haw. R. Prof. Cond. 3.7(a) to apply only to the actual trial. See, e.g., Caplan v. Braverman, 876 F. Supp. 710, 711 (E.D. Pa. 1995) (applying Penn. R. Prof. Cond. 3.7(a)). This Court, however, has previously ruled that Rule 3.7 also applies to pretrial proceedings, finding that disqualification for the trial proceedings alone is insufficient to remedy the conflict between the attorney's role as advocate and witness and could result in a prejudicial substitution of counsel immediately before trial. See Royal Travel, Inc. v. Shell Management Hawaii, Inc., et al.; CV 08-00314 JMS-LEK; Order Granting Defendants' Motion to Disqualify Attorney J. Charles Blanton as Counsel for Plaintiffs and to Revoke His Pro Hac Vice, filed 3/12/09 (dkt. no. 50), at 13; Opuna, LLC, et al. v. Sabbagh, et al., CV 05-00488 SOM-LEK, Order Granting Defendant's Motion to Disqualify Jerry A. Ruthruff as Counsel for Opuna LLC, filed 4/17/06 (dkt. no. 73), at 14 & n.4. This Court therefore finds that, if Rule 3.7 bars Plaintiff from serving as counsel, such prohibition also applies to pretrial proceedings.

Based on the pleadings in this case and the parties' representations in connection with this Application, this Court finds that Plaintiff will likely be a necessary witness in this case and his testimony is likely to conflict with the testimony of Defendants' witnesses. Defendants may be prejudiced by Plaintiff's admission as counsel pro hac vice because his status as counsel and witness may unduly complicate discovery and his dual role may create an improper inference that his testimony is more credible than that of Defendants' witnesses. The Court further finds that the potential prejudice to Plaintiff from the denial of his Application is minimal. *** Plaintiff can still share his factual knowledge with counsel as a witness and a consultant.

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