In an unusual application of the lawyer-witness rule, a district court recently held that the rule would not prevent an assistant state attorney general from being on an open phone line along with the court and other party representatives during the execution of a death-row inmate — even though the assistant AG might have to testify as a fact witness during the execution.

Open phone line

The inmate, Robert Van Hook, was scheduled to be executed in Ohio for a 1985 murder. He and many other inmates had challenged Ohio’s lethal injection execution protocol on Constitutional grounds. He requested that an open phone line be maintained through the course of his execution, and that his attorney, the Ohio assistant AG on the case, and the court be on the line, so that his attorney could move for a temporary restraining order to halt the execution mid-stream if it began to go wrong.

Some executions by lethal injection, including in Ohio, have had serious problems in being carried out. (See here, here and here, for example.)

Lawyer-as-witness issue?

The Ohio Attorney General objected to the inmate’s request, because if the inmate’s lawyer moved for a stay or TRO during the execution, “an Assistant Attorney General may be placed in the difficult position of becoming a fact witness in order to rebut allegations made by Plaintiffs” in the ensuing telephone hearing from the death house. This would create a conflict of interest under Ohio ‘s version of Model Rule 3.7, the Attorney General said, that would require recusal of one or more lawyers. Because of the limited number of assistant AG’s familiar with the case, recusal would hamper the ongoing litigation over Ohio’s execution protocol, he noted.

The magistrate judge rejected the AG’s argument. Ohio Rule 3.7(a)(3) (like the Model Rule) provides that “a lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness unless … the disqualification of the lawyer would work substantial hardship on the client.”

A main justification for the bar against acting as a lawyer and a witness in the same cause is confusion for the trier of fact in taking account of these dual roles. But, the judge said, there was little risk of confusing the court under the likely circumstances here. And any possible confusion was outweighed by the substantial hardship to the defendants that would result if the court were to bar testimony from the assistant AG with intimate knowledge of the case, and who was observing the execution, the judge held. Therefore, the open phone line plan would not impeded by the possibility of disqualification under the lawyer-as-witness rule.

The magistrate judge also held that the purpose of open phone line — a possible post-lethal-injection motion for injunctive relief — was not “futile.” The court said that Van Hook had the right to challenge his execution as cruel and unusual, and “he does not lose that right once the injection begins….”

Van Hook’s execution proceeded without incident on July 25.