NCJ Number
72785
Journal
Cincinnati Law Review Volume: 48 Issue: 3 Dated: (1979) Pages: 794-808
Date Published
1979
Length
15 pages
Annotation
This paper discusses the advocate-witness rule of the American Bar Association Code of Professional Responsibility which bars an attorney from acting as trial counsel in cases in which the attorney or a member of the law firm will be a material witness.
Abstract
Many writers have criticized the advocate-witness rule because it is said to interfere with the clients' selection of counsel. By forcing the client, often at considerable expense, to employ other and usually less suitable counsel, the rule effectively penalizes individuals for having the foresight to consult an attorney on a legal problem in advance. Also, the courts have narrowly construed the 'substantial hardship' exception, causing the rule to be applied to situations in which its purpose (to protect clients) is defeated. The rule also provides a delaying tactic for the opposition. Wishing to delay the trial, for example, the counsel may move to disqualify the opponent on less than legitimate grounds. The rationale of the 'appearance of impropriety,' upon which the rule is based, has been severely criticized because it assumes that the view of the most cynical is the true view of the public. An alternative to the advocate-witness rule would require that thE client be informed of all potential problems if the counsel is called to testify. The decision whether to retain the counsel would then be left solely to the client. Yet despite its inevitable unfairness in some situations, the advocate-witness rule is a necessary restriction on the legal profession. In a time in which the ethics of the legal profession are called into question, to eliminate or even substantially to alter the advocate-witness rule would severely hamper the legal system as a whole. About 80 footnotes are appended.