By Carole J. Buckner

Carole Buckner is Senior Counsel with Klinedinst PC, and a longtime member of LACBA’s Professional Responsibility and Ethics Committee. She also serves as a mediator, arbitrator, and expert witness. Ms. Buckner can be reached at cbuckner@klinedinstlaw.com

Articles are provided regularly by LACBA’s longstanding Professional Responsibility and Ethics Committee. 

When a lawyer acting as an advocate for a client in a lawsuit is also a witness as to substantive issues involved in the litigation, the general rule is that the lawyer may act as both advocate and witness, if the lawyer obtains informed written consent from the client. But the court in its discretion may disqualify the advocate/lawyer despite such consent, in limited circumstances. The Second Appellate District recently addressed, in Geringer v. Blue Rider Finance, 2023 WL 5359826, the obligations of the parties in a situation where an advocate is also a witness.

Rule 3.7 of the California Rules of Professional Conduct provides that a lawyer shall not act as an advocate in a trial in which the lawyer is likely to be called as a witness, unless the lawyer’s testimony relates to uncontested matters or to the value of legal services, or the client gives informed written consent. The rule applies to trials before juries, judges, administrative law judge or arbitrators. A client’s informed consent is not the end of the analysis, however, because the court retains discretion to take action, including disqualification of the witness/advocate lawyer, in order to protect the trier of fact from being misled or the opposing party from being prejudiced. The pre-2018 version of this rule applied in jury trials, but did not apply to bench trials, on the theory that judges were through capable of avoiding confusion.

Blue Rider alleged fraud, civil conspiracy, unilateral mistake and declaratory relief, claiming that Geringer Capital, Roger Geringer and Tricycle Entertainment (“Geringer) fraudulently induced Blue Rider to sign a settlement agreement containing terms the parties did not intend to include, and asserting Blue Rider’s assent to the settlement without noticing the improperly included terms involved a unilateral mistake. About one month before the 2021 trial date, Blue Rider filed a notice reflecting its consent to its attorney Jeffrey Konvitz, acting as a key witness, and confirming association of a new counsel to question Konvitz at trial.

A key witness, Konvitz had represented Blue Rider since the inception of the litigation leading to the 2010 settlement, and in the subsequent litigation, which involved thousands of pages of documents, for over 16 years. Konvitz testified in his deposition that he was duped by Geringer and its attorneys who Konvitz claimed included claims in the settlement that Blue Rider did not intend to release. Blue Rider explained that the entity was insolvent and could not retain independent counsel and that even if Blue Rider had been able to do so, it would have taken a new lawyer substantial time to learn the case.

On the eve of trial, Geringer moved to preclude attorney Konvitz from testifying, and later, alternatively, sought Konvitz’ s disqualification, based on Rule 3.7. Blue Rider argued that Geringer knew Konvitz would be a witness for eight years and had advised the court a year earlier that he would try the case. Geringer claimed prejudice, indicating they intended to submit evidence that Konvitz committed malpractice in handling the settlement. Even though the case would be tried to the court, Geringer claimed that Konvitz’ s acting as both counsel and witness would rob the trial of the “appearance of fairness.”

Although Blue Rider had duly consented to Konvitz testifying in compliance with Rule 3.7, the trial court disqualified Konvitz on the grounds that the integrity of the judicial process would be impaired and that opposing counsel may be handicapped in challenging the lawyer/witness’s credibility, and found that the mental gymnastics required by an advocate/witness to keep the roles straight would result in an impermissible risk of error and confusion, despite Blue Rider’s strong interest in having its counsel of choice, and the prejudice to Blue Rider from disqualification. The trial court added that the disqualification was also granted to protect Blue Rider against prejudice and continued the trial to allow Blue Rider to engage new counsel. Blue Rider appealed. On appeal, the court reversed, indicating that “this is not even a particularly close case.”

The appellate court observed that the court’s discretion to disqualify counsel requires “a convincing demonstration of detriment to the opponent or injury to the integrity of the judicial process.” Disqualification was appropriate only where manifest interests required protection from “palpable prejudice.” In exercising the discretion to disqualify, the court should evaluate 1) whether counsel’s testimony was genuinely needed; 2) whether opposing counsel was using the disqualification motion for purely tactical reasons; and 3) the strong interest of a party in having its counsel of choice, and the expense involved in replacing counsel. Judges must indicate on the record the factors considered and make specific findings of fact when weighing the conflicting interests.

The appellate court gave great weight to Blue Rider’s right to counsel of its choice, and to the financial burden of new counsel, which the court found supported a finding that “extreme prejudice” would result from disqualification. The appellate court found that until Geringer raised the issue, there was nothing for Konvitz and Blue Rider to do in order to comply with Rule 3.7 beyond obtaining the informed written consent. The court also found Geringer’ s delay in bringing the motion problematic, that a party who seeks to challenge counsel must do so at the first reasonable opportunity and that delay in doing so can impliedly waive disqualification. The court also suggested that Geringer’s real intent was tactical, as it had first requested Konvitz’s testimony be blocked.

Ultimately the appellate court did not find prejudice to Geringer. The court was not persuaded that Geringer’s ability to challenge Konvitz’s testimony or integrity of the judicial process would be impaired. The appellate court found those concerns were “generic” and “conclusory” without an adequate factual record. The court indicated it is typically easier to impeach a lawyer advocate for interest, and the court could control the questioning so the “mental gymnastics” would not impair justice.

The case provides several key takeaways. First, lawyers truly concerned with opposing counsel testifying should address the issue in a timely manner to avoid a waiver argument. In addition, asking to preclude the testimony where the lawyer is a key witness may not be the best strategy. An opposing party must be prepared to articulate prejudice and may have a challenge doing so in a bench trial, where the court can manage the questioning. It is not likely that the need to impeach the advocate/witness will constitute prejudice to the opposing party, since this factor will arise every time a lawyer is a witness.

Finally, although the rule permits a lawyer to serve as both witness and advocate, and opposing parties may not object, and the court may allow the lawyer to do so, strategic considerations about the effectiveness of the lawyer doing so also need to be addressed to assure that the lawyer effectively represents the client while also acting as a witness. The lawyer should carefully consider whether under the circumstances, serving as both advocate and witness would best serve the client. If so, the lawyer should discuss with the client the potential negative impact of the lawyer serving as both advocate and witness, including the risk of the lawyer being impeached when testifying. See, Gayle Eskridge, Considerations and Pot4ential Consequences of Becoming An Advocate-Witness, LACBA Update, Nov. 2022.