LAW | ETHICS

When Suddenly Lawyers are Swearing by the Truth Instead of Arguing Over It

Between witnessing and counseling

You are watching a courtroom drama in which the busy lawyer suddenly jumps up on the witness stand to take the oath to tell the truth. Yes, it’s a double-take moment. Such an unusual move may cause some puzzled glances, because it is not clear whether the lawyer is still playing the role of advocate or whether he has become just another witness telling facts.

That’s where Model Rule 3.7 steps in — to referee this potentially wild game, setting the parameters for when and how a lawyer can be both a speaker and a subject in the courtroom, trying to prevent confusion and keep the game fair. After all, it would quite be the show — although not in any positive sense — to see a lawyer keeping on toggling hats, arguing one minute and testifying the next!

So, here is Mikki, an attorney. He is arguing a case for a business contract, and suddenly leaps up to testify. After all, he was in the meeting where they talked about the deal. Now poor Mikki is in a bit of a pickle. Is he an advocate arguing a case or a witness describing what he has seen?

So, the rule is basically telling Mikki that if he wants to discuss what happened at that meeting, he may have to step down as lawyer in that case. Otherwise, he might confuse the jury and even raise their suspicions: is he bending the story because he is representing one side?