Attorneys occasionally find themselves in the proverbial "hot seat"—requested or compelled to give testimony on the stand. For various reasons, clients may want their attorneys to testify in support of their case or position. In other instances, litigation adversaries may attempt to call their opposing counsel to gain a strategic advantage. Attorneys may also be called as fact witnesses to the events at issue. It is not uncommon for attorneys to receive subpoenas for testimony in deposition, court or administrative proceeding.
While some attorneys, and litigators in particular, may be comfortable with the idea of testifying, attorney testimony is risky business. On top of the risks inherent for all witnesses, including impeachment and perjury, attorneys face unique hazards. Because of those risks, every attorney receiving a request or subpoena for testimony is tasked with carefully considering all attendant risks and taking appropriate steps to mitigate them.
Recognizing who is requesting the testimony is a critical first step, as it will inform the attorney's course of conduct. Upon receiving a request or subpoena, therefore, an attorney should ask, "Who wants the testimony?" The answer will determine what steps are necessary to protect the attorney, law practice and the client.
It should be no surprise that some clients consider their attorneys to be the best witness to support their cause. One example occurs when clients decide to assert the "advice of counsel" defense.
Despite the benefits in limited situations, an attorney's testimony on behalf of her client implicates at least three significant issues. First, as soon as the attorney takes the oath, the attorney-client privilege and work product protections are potentially waived; it is well known that the privilege cannot be used as both a sword and a shield.
While it is possible to offer testimony on topics pertaining to nonprivileged information, the risks of successfully tailoring the testimony can be great. Because testifying on privileged topics may operate to waive certain protections that the client might otherwise enjoy, most attorneys receiving a subpoena or request for testimony will notify their firm's in-house counsel and then speak to the client. Indeed, most attorneys facing this issue will confirm the client's understanding and assumption of this risk through written informed consent.
Second, certain evidentiary and ethics rules, like the rule against sequestration, operate to bar some attorneys from continuing the representation after testifying on a client's behalf. States' rules vary regarding the degree to which testifying attorneys can continue to participate in a trial as an advocate for the client (Georgia Rule of Professional Conduct 3.7 addresses this issue). Again, many attorneys addressing this risk will take steps to ensure that the client understands the potential result and accepts the same.
Third, the testimony may create conflicts of interest between the attorney and both the law practice and the client. As to the law practice, there are risks that the content of the testimony might suggest a violation of the ethics rules or the standard of care—operating as both evidence of a deviation from the applicable standard of care and as an admission under oath. This could implicate certain risk issues for the firm. As to the client, the client may opt to waive certain privileges and instruct the attorney to testify. However, it is still the attorney's obligation in most cases to protect confidences and secrets, as well as privileged communications, until that waiver has occurred. This is another instance where disclosure of risks in writing and obtaining written consent may ease the risk.
Given the various risks, testifying attorneys may consider retaining their own counsel. It can be too much to expect the attorney to protect the client's interest while simultaneously protecting her own. Having independent counsel to advise and protect the attorney in this situation can provide invaluable protection.
Attempted depositions of opposing counsel remains a popular litigation tactic among aggressive litigators, particularly in high-stakes cases. Courts frown on such attempts that are made without any merit. No matter the jurisdiction, the relevant rules are generally quite strict for parties attempting to obtain discovery from opposing counsel rather than through alternative available means.
Attorneys are nevertheless sometimes called to testify at depositions and trials. Under those circumstances, it is standard for the attorney to provide notice to the client and, after carefully considering the issues, challenge the request for testimony when appropriate.
All of the issues described in the preceding section should be addressed with the client. The risks may even be heightened in a situation in which the testimony is sought by opposing counsel. Indeed, the third item—a potential conflict between the attorney/law practice and the client—is especially important.
In addition, because a request for testimony can trigger a mandatory reporting obligation under some legal malpractice policies, the attorney and in-house counsel should evaluate whether the discovery and/or subpoena must be reported to the legal malpractice insurer. If so, the notice operates to preserve coverage if a related claim is later asserted.
Sometimes an attorney is called to testify by a third party as a fact witness. The attorney who drafted a will, for example, may be called to testify during probate of the will regarding the competency of the testator. Insurance defense attorneys might be called in bad faith litigation against the insurance company to attest to the investigation, evaluation and adjustment of the claim.
The risks of attorney testimony remain, and the first step in many situations is to notify the firm's in-house counsel. Unlike a request for testimony by a current client (which may raise conflict issues involving current clients), requests for fact testimony by third parties often implicate a former representation. Yet, most attorneys will still practice disclosure and notice. After notice to in-house counsel, the attorney can provide notice to the former client so that the client can take appropriate steps to protect its own interests, which may include asking the attorney for advice. Before considering a request by the client to represent the client's interests, effective risk management involves consideration of the issues raised above.
Third-party requests for testimony can come from government agencies, including law enforcement agencies. Notwithstanding any assurances provided, attorneys should tread carefully, even if such testimony is made during informal interviews. As a result, assistance of counsel can prove beneficial when attorneys are subpoenaed or informally interviewed by a government agency.
As published by The Daily Report