On November 1, 2018, California enacted new rules of professional conduct for lawyers. The new rules make many changes, one of which is Rule 3.7 (lawyer as witness). The prior rule (Rule 5-210) applied only to a lawyer as a witness at trial in jury trial proceedings. New Rule 3.7 does not make that distinction – new Rule 3.7 applies to both jury trial and bench or judge trial proceedings. The following is an essentially verbatim summary of new Rule 3.7:

Rule 3.7(a)(lawyer as witness):

1. Is the lawyer acting as an advocate (i.e., in my view, is the lawyer representing a client) in a trial or an evidentiary hearing?
2. If the answer is yes to number 1, is the lawyer likely to be a witness?
3. If the answers are yes to numbers 1 and 2, does the lawyer’s testimony relate to a contested issue or matter?
4. If the answers are yes to numbers 1, 2, and 3, does the lawyer’s testimony relate to other than the nature and value of legal services rendered in the case?
5. If the answers are yes to numbers 1, 2, 3, and 4, has the lawyer obtained informed written consent from the client?

Rule 3.7(b): 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.

The following is a more detailed discussion that reflects more of the practicalities of the lawyer being involved in or possibly becoming involved in a probate court proceeding in which the lawyer is a witness or might become a witness who will provide testimony or might provide testimony relating to a contested issue or matter or relating to an issue or matter that might become contested? I have stated the Rule in this manner because (1) there are situations in which the Rule is not triggered, and (2) there are situations in which the Rule is triggered, and (3) there are situations in which the Rule might be triggered or might become triggered. In situations (2) and (3) consideration should be given to obtaining informed written consent and the wording and timing of such, whether informed written consent is even an option under the Rule, and whether informed written consent or some other action such as disengagement is best under the situation, and the timing of such.

As probate court proceedings are bench or judge proceedings, for which, with limited exceptions, jury trials usually are not available, it is now important to consider the possible applicability of new Rule 3.7 in all probate court proceedings including those proceedings which have not yet reached the trial stage. New Rule 3.7 already has been a potential issue in some of my cases – Rule 3.7 will or may apply in some probate court proceedings, whereas in others it will not.

Every probate court proceeding and case is different – whether or not Rule 3.7 applies will need to be evaluated on a proceeding by proceeding and case by case basis and might need to be considered at various different times in the course of a proceeding or case as the situation could be fluid and changing.

Note that I am differentiating between a probate court proceeding and a probate court case although the two might be considered the same – many probate court proceedings are never formally scheduled for trial or evidentiary hearing – nevertheless, even when a trial or evidentiary hearing has not been formally scheduled, a reading of Rule 3.7 suggests that the possible applicability of the Rule should still be considered and an evaluation made whether the lawyer is or might be or become an advocate at a trial or evidentiary hearing or proceeding, and whether the lawyer is or might likely be a witness.

Repeating myself somewhat, because this is a situation or question that could arise more often, you will also note that Rule 3.7 can bring into consideration the possibility of conflict waiver, which raises a host of other issues to consider including, for example, the possible timing of a discussion about that possibility (such as possible discussion in an engagement letter), whether an actual conflict waiver should be considered and the timing of such, and, if a conflict waiver is required or desired, whether such a waiver is actually allowable under the circumstances of the proceeding or case, and whether such a waiver is the best or most prudent course of action compared to other possible options including possible disengagement.

New Rule of Professional Conduct 3.7 states as follows:

Rule 3.7 Lawyer as Witness

(a) A lawyer shall not act as an advocate in a trial in which the lawyer is likely to be a witness unless:

(1) the lawyer’s testimony relates to an uncontested issue or matter;

(2) the lawyer’s testimony relates to the nature and value of legal services rendered in the case; or

(3) the lawyer has obtained informed written consent from the client. If the lawyer represents the People or a governmental entity, the consent shall be obtained from the head of the office or a designee of the head of the office by which the lawyer is employed.

(b) 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.

You should also read the discussions and comments, and the cited case, provided under Rule 3.7 to understand and to get a feel for whether the Rule 3.7 applies in your proceeding or case, and, if so, how to approach the possible client written consent option under the facts of your proceeding or case, and possible other options and situations, including disengagement and court discretionary authority to disqualify an attorney even if written consent is obtained (see, e.g., Lyle v. Superior Court).

It is not uncommon for the estate planning attorney or firm to also be involved in subsequent post-death administration which also can be or can become a probate court proceeding. Thus, if the proceeding is a probate court proceeding, pursuant to new Rule 3.7, you must first evaluate whether the lawyer is or might be or become acting as “an advocate” representative, and whether the lawyer is or might likely become a witness providing testimony (declaration?) relating to a contested issue or matter at trial or at an evidentiary hearing or proceeding?

These questions should be carefully evaluated on a proceeding by proceeding or case by case basis. Depending on your evaluation of these issues, next evaluate on a proceeding by proceeding or case by case basis: (1) does the lawyer’s testimony relate to a contested or possibly contested matter or to an uncontested matter; (2) does the lawyer’s testimony relate (solely relate?) to the nature and value of legal services rendered in the case; and (3) has or will or should the client provide written consent (see also the discussion above)? And, if client written consent is an option, you will also need to consider the wording of the (informed) written consent.

Will the impact of new Rule 3.7 be earthshaking? Rule 3.7 needs to be considered on a proceeding by proceeding and case by case basis. New Rule 3.7 already is or could be applicable in many probate court proceedings and cases. The overall impact will need to be determined over time, and on a county by county and probate judge by probate judge basis. However, in probate court proceedings or cases in which the lawyer is likely or could become likely to be a witness (for example, such as in will and trust contests or possible contests, and possibly in other proceedings or cases in which there is an objection or opposition, or possibly a likely objection or opposition) Rule 3.7 might apply or at least should be considered as possibly applying including the options available.

In appropriate cases you should also consider Rule 3.7(b) which states “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.”

I will be writing subsequent posts on these issues as they can be important to estate planning and administration attorneys, and in proceedings and cases, and these are and will continue to be developing areas. Please also note that I will also be discussing other rules, cases, decisions, and issues, including possible client duties, that can or might apply in a particular situation, including, for example, Rules 1.6, 1.7, 1.9, and 1.10, which pertain to client confidential information, possible conflicts between current clients, possible conflicts between a former client and a current client, and new Rule 1.10 pursuant to which conflicts can be imputed between different attorneys in the same law firm.

Thanks for reading this post. Every trust situation is different. You do need to consult with professionals about your particular situation. This post is not a solicitation for services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation.

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only

Blogs: California trust, estate, and elder abuse litigation and contentious administrations http://californiaestatetrust.com; D&O, audit committee, governance and risk management http://auditcommitteeupdate.com

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