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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Arkansas Legal Ethics

III. ADVOCATE

3.1   Rule 3.1 Meritorious Claims and Contentions

3.1:100   Comparative Analysis of Arkansas Rule

3.1:101      Model Rule Comparison

The Arkansas Rule is the same as the Model Rule.

3.1:102      Model Code Comparison

The comparison accepted by the Arkansas Supreme Court is identical to the comparison in the Model Rules.

3.1:200   Non-Meritorious Assertions in Litigation

See 3.1:300. Attorney fees may be awarded to those who successfully defend against frivolous lawsuits. Ar. Code — 16-22-309 (Ņa complete absence of a justifiable issue of either law or factÓ).

3.1:300   Judicial Sanctions for Abusive Litigation Practice (Especially Rule 11)

Ark. R. Civ. P. 11 requires that an attorney make a reasonable inquiry as to both the factual and legal basis for a pleading, motion or other document before filing with the court. Further, the motion or document may not be filed for any improper purpose, such as to delay, harass, or needlessly increase the cost of litigation. The mere subjective belief or the good faith of the attorney as to the validity of the papers filed is not an adequate defense. If Rule 11 is violated, sanctions are mandatory. Ward v. Dapper Dan Cleaners & Laundry, Inc., 309 Ark. 192, 828 S.W. 2d 833 (1992) (attorney sued on a statute that had been declared unconstitutional). Sanctions may include payment of the attorney fees and expenses incurred by the opposing party. Brough v. Brough, 41 Ark. App. 211, 850 S.W. 2d 337 (1993).

The court may act on its own initiative to impose sanctions, but a party's motion for sanctions is made separately from the complaint and from other motions or requests. It is served upon the opposing party, but is not filed with the court until 21 days after service. This 21 day Ņsafe harborÓ permits a party to reconsider, modify, correct or withdraw its pleading or motion without sanctions. The burden is on the moving party to demonstrate a violation of Rule 11. Bratton v. Gunn, 300 Ark. 140, 777 S.W. 2d 219 (1989). Sanctions are not assessed against an attorney who makes a reasonable inquiry into the existing law and then asks the court on constitutional grounds to reverse existing law. Miller v. Leathers, 311 Ark. 372, 843 S.W 2d 850 (1992).

The Arkansas Supreme Court suspended for one year an attorney who was incompetent and who filed frivolous and harassing motions in bankruptcy court in violation of Rule 3.1. Dodrill v. Executive Director, 308 Ark. 301, 824 S.W. 2d 383 (1992).

3.1:400   Civil Liability for Abusive Litigation Practice [see 1.1:520]

An attorney cannot be held civilly liable for violation of Rule 3.1. Crockett & Brown, P.A. v. Wilson, 314 Ark. 578, 864 S.W. 2d 244 (1993) (allegedly frivolous appeal).

3.1:500   Complying with Law and Tribunal Rulings

Arkansas has no case law or authority on this topic.

3.2   Rule 3.2 Expediting Litigation

3.2:100   Comparative Analysis of Arkansas Rule

3.2:101      Model Rule Comparison

The Arkansas Rule is the same as the Model Rule.

3.2:102      Model Code Comparison

The comparison accepted by the Arkansas Supreme Court is identical to the comparison in the Model Rules.

3.2:200   Dilatory Tactics

See 3.1:300.

3.2:300   Judicial Sanctions for Dilatory Tactics

See 3.1:300.

3.3   Rule 3.3 Candor Toward the Tribunal

3.3:100   Comparative Analysis of Arkansas Rule

3.3:101      Model Rule Comparison

The Arkansas Rule is the same as the Model Rule.

3.3:102      Model Code Comparison

The comparison accepted by the Arkansas Supreme Court is identical to the comparison in the Model Rules.

3.3:200   False Statements to a Tribunal

Arkansas has no case law or authority on this topic.

3.3:300   Disclosure to Avoid Assisting Client Crime or Fraud

Arkansas has no case law or authority on this topic.

3.3:310      Prohibition on Counseling or Assisting Fraud on a Tribunal [see also 1.6:350]

Arkansas has no case law or authority on this topic.

3.3:400   Disclosing Adverse Legal Authority

Arkansas has no case law or authority on this topic.

3.3:500   Offering False Evidence

3.3:510      False Evidence in Civil Proceedings

According to Ar. Code 5-53-102, a person commits perjury Ņif in any official proceeding he makes a false material statement, knowing it to be false, under an oath required or authorized by law.Ó Official proceedings include a proceeding heard before any legislative, judicial, administrative or other government agency, or official authorized to hear evidence under oath.

3.3:520      False Evidence in Criminal Proceedings

See 3.3:510.

3.3:530      Offering a Witness an Improper Inducement

See 3.4:310.

3.3:540      Interviewing and Preparing Witnesses

Attorneys are permitted to talk with and prepare witnesses before placing them in front of a court reporter, either in a deposition or in a courtroom. In both civil and criminal cases attorneys may discuss with witnesses the testimony they will give when under oath. Bayless v. State, 326 Ark. 869, 935 S.W. 2d 534 (1996).

However, a narrow line exists between acceptable witness preparation and indirect attempts to influence the testimony. Although attorneys may disclose generally what another witness has said under oath, discussion of the details of the testimony may be improper. Id. During a trial specific discussion may be viewed as an attempt to avoid the sequestration rule excluding witnesses from the courtroom.

3.3:600   Remedial Measures Necessary to Correct False Evidence

3.3:610      Duty to Reveal Fraud to the Tribunal

See generally Richard K. Burke, "Truth in Lawyering": An Essay on Lying and Deceit in the Practice of the law, 38 ARK. L. REV. 1 (1984).

3.3:700   Discretion to Withhold Evidence Believed to Be False

Arkansas has no case law or authority on this topic.

3.3:800   Duty of Disclosure in Ex Parte Proceedings

Arkansas has no case law or authority on this topic.

3.4   Rule 3.4 Fairness to Opposing Party and Counsel

3.4:100   Comparative Analysis of Arkansas Rule

3.4:101      Model Rule Comparison

The Arkansas Rule is the same as the Model Rule.

3.4:102      Model Code Comparison

The comparison accepted by the Arkansas Supreme Court is identical to the comparison in the Model Rules.

3.4:103      Overview

{Begin text here}

3.4:200   Unlawful Destruction and Concealment of Evidence

Ar. Code — 5-53-111 defines the offense of tampering with physical evidence as altering, destroying, suppressing, removing or concealing any record, document or thing with the purpose of impairing its verity, legibility or availability in any official proceeding or investigation. This criminal statute ties into AR Rule 3.4(a)(1).

Ar. Code — 5-54-105 makes it a crime to "conceal, alter, destroy or suppress the discovery of any fact, information or other thing related to a crime that might aid in the discovery, apprehension or identification" of any accused. The scope of that provision as it applies to information directly conflicts with the confidentiality provision of AR Rule 1.6.

3.4:210      Physical Evidence of Client Crime

Arkansas has no case law or authority on this topic.

3.4:300   Falsifying Evidence

For a discussion of dealing with criminal defendants who wish to engage in witness tampering, lying during trial, taking the proceeds of the crime, tampering with evidence, involving the lawyer in criminal activities, and similar activities, see John Wesley Hall, Jr., Defensive Defense Lawyering or Defending the Criminal Defense Lawyer from the Client, 11 U. ARK. LITTLE ROCK L.J. 329 (1989).

3.4:310      Prohibited Inducements

Under the Arkansas Rules of Civil Procedure occurrence witnesses are paid an attendance fee and mileage expenses. Prior to a 1988 amendment a witness could be compensated based on lost wages. With the removal of that language, the implication is clear that the payment of a fee over and above the attendance fee is improper, regardless of whether the witness requested the fee, regardless of whether the witness is an employee or friend of the party as opposed to an adverse witness, and regardless of whether the witness will suffer actual wage losses. Indeed, depending upon the payor's intent, such a payment may come within the scope of a witness bribery statute. See Ar. Code — 5-53-108. However, in the absence of a subpoena the common law rule that the attorney can reimburse the witness with reasonable expenses for lost time based on earnings would seem to apply.

Superseded Disciplinary Rule 7-109(c) provided that an expert witness could be paid a reasonable fee, but not a fee contingent upon the outcome or his testimony. That rule is impliedly incorporated into AR Rule 3.4(b) and codified in medical malpractice litigation as Ar. Code — 16-114-207(2). An expert cannot be compelled to give testimony for a party. See Howard W. Brill, ARKANSAS LAW OF DAMAGES, —12-4 (3rd ed. 1996).

3.4:400   Knowing Disobedience to Rules of Tribunal

Along with any disciplinary sanctions, an attorney may be held in contempt for directly advising a client in open court to disobey a lawful court order, Davis v. Goodson, 276 Ark. 337, 635 S.W.2d 226 (1982), or other violations of Rule 3.4. See Morton Gitelman, The Zealous Advocate and Contempt of Court: Attorney Contempt in Arkansas and the Need for Change, 1984 ARK. L. NOTES 39.

3.4:500   Fairness in Pretrial Practice

If a mistake is made in discovery and the attorney turning over documents sends to the adversary privileged or confidential documents, the obligation of the attorney who receives the documents and recognizes they were sent by mistake is uncertain. Some authority suggests the receiving attorney can use the material because that attorney was innocent, and perhaps the sending attorney was negligent. Some authority suggests that the inadvertent disclosure can never amount to a knowing waiver of any privilege. Some opinions draw a distinction between confidential and privileged material. However, American Bar Association Formal Opinion 92-368 concludes that the receiving lawyer should refrain from examining the materials that have come into his possession, should notify the other attorney, and follow the instructions of the other attorney. The different lines of authority are summarized in Pavlik v. Cargill, Inc., 9 F. 3d 710 (8th Cir. 1993).

3.4:600   Improper Trial Tactics

The Rules of Professional Conduct do not abolish the adversary system, nor are they intended to equalize the preparation, experience, enthusiasm or devotion of opposing attorneys. For example, the rules do not prohibit an attorney from using in closing arguments "a tone of voice carrying the clear message that he feels the Deity is on his side." National Bank of Commerce v. HCA Services of Midwest, Inc., 304 Ark. 55, 800 S.W. 2d 694 (1990). "Whether a lawyer adopts the stentorian manner of Daniel Webster, the quiet reason of Abraham Lincoln, or the bombastic passion of Billy Sunday, the goal is the same: to persuade the jury that his side's theory of the case enjoys the imprimatur of justice, truth and right. The lawyer who achieves this pinnacle of credibility should be praised, not censured." Id. at 69, 800 S.W. 2d at 702. Likewise, a reference to the Bible is not necessarily improper in closing arguments. Bussard v. Lockhart, 32 F. 3d 322 (8th Cir. 1994) (no denial of effective counsel when defense attorney did not object to prosecutor's quotation of Proverbs 28:1 ["The guilty flee when no man pursueth while the righteous stand bold as a lion."].).

In a personal injury case, the plaintiff may use a per diem basis in arguing for an award of pain and suffering damages. Vanlandingham v. Gartman, 236 Ark. 504, 367 S.W.2d 111 (1963). Further, an attorney may argue that the jury should use its own experience in evaluating injuries. Smith v. Pettit, 300 Ark. 245, 778 S.W.2d 616 (1989). However, a so-called Golden Rule argument, coming from Matthew 7:12, by which the advocate asks the jurors to put themselves into the place of the victim and award damages on that basis, is not permitted in Arkansas courts. Midwest Buslines, Inc. v. Johnson, 291 Ark. 304, 724 S.W.2d 453 (1987); Missouri Pac. R. Co. v. McDaniel, 252 Ark. 586, 483 S.W.2d 569 (1972) (in closing argument, jurors asked whether they would take $75,000 for the life of their spouse). Conversely, it is improper in closing argument to inquire of jurors how they would feel if they individually and personally had to pay a judgment. See Piercy v. Wal-Mart Stores, Inc., 311 Ark. 424, 844 S.W. 2d 337 (1993).

Likewise, in a criminal case, the prosecutor may not ask the jury to put themselves in the place of the victim. Garza v. State, 293 Ark. 175, 735 S.W.2d 702 (1987). Such an argument is impermissible in that it undermines the objectivity of the jury. King v. State, 317 Ark. 293, 877 S.W. 2d 583 (1994). Improper closing arguments may require reversal of a guilty verdict. For example, Adams v. State, 229 Ark. 777, 318 S.W. 2d 599 (1958) (prosecutor argued to jury in rape case that, "if you turn this man loose, go home and tell your daughters that you have made it really hard for them today because you turned a man loose that can run over them. . . ."). Judicial admonitions to ignore improper arguments may cure the error. For example, King v. State, 317 Ark. 293, 877 S.W. 2d 583 (1994) (prosecutor argued that a finding of guilt is "the type of message that you can send out here to those folks who might . . . molest their little step-daughter or the little girl next door, your grandbaby, your daughter . . .").

3.4:700   Advising Witness Not to Speak to Opposing Parties

The knowing concealment of witnesses, in disregard of applicable discovery procedures, is a clear violation of the attorney's duty to the court and to opposing counsel. Martin v. Rieger, 289 Ark. 292, 711 S.W. 2d 776 (1986). Likewise, advising occurrence witnesses not to talk to the opposing party is inconsistent with AR Rule 3.4(f) and subjects the attorney to judicial sanctions. See Harlan v. Lewis, 141 F.R.D. 107 (E.D. Ark. 1992) (attorney held in contempt and fined $5000 for ex parte interviews with non-party treating physicians of plaintiff), affirmed at 982 F. 2d 1255 (8th Cir. 1993). Ex parte contacts with the expert witnesses of the opposing party may be inconsistent with civil procedure rules and thus violate AR Rule 3.4(c) and AR Rule 4.2. See American Bar Association Formal Opinion 93-378. The examination of an adverse witness who is also a client in an unrelated matter presents a conflict of interest to be resolved under AR Rule 1.7(b) and perhaps other provisions.

3.5   Rule 3.5 Impartiality and Decorum of the Tribunal

3.5:100   Comparative Analysis of Arkansas Rule

3.5:101      Model Rule Comparison

The Arkansas Rule departs from the Model Rule in that AR Rule 3.5(b) provides that a lawyer shall not Ņcommunicate ex parte with such a person on the merits of the cause except as permitted by law. . . .Ó

3.5:102      Model Code Comparison

The comparison accepted by the Arkansas Supreme Court is identical to the comparison in the Model Rules.

3.5:200   Improperly Influencing a Judge, Juror, or Other Court Official

3.5:210      Improperly Influencing a Judge

Arkansas has no case law or authority on this topic.

3.5:220      Improperly Influencing a Juror

The principles of superseded DR 7-108 still apply. An attorney is barred from communicating directly (or through another) with a juror, prospective juror or member of the juror's family. However, attorneys may undertake non-vexatious pre-trial investigation of possible jurors. The attorney should promptly reveal improper conduct by or toward a venireman or a juror. See United States v. Dean, 667 F.2d 729 (8th Cir. 1982) (attorney's failure to notify court of possible juror misconduct barred use of evidence as grounds for new trial).

Unless prohibited by court order, attorneys are permitted to ask questions of jurors, after discharge of the jury. However, questions should not harass or embarrass the juror or influence his actions in future jury service. Attorneys may not interview jurors in an attempt to obtain inadmissible affidavits to impeach the verdict of the jury. Sanson v. Pullum, 273 Ark. 325, 619 S.W.2d 641 (1981). Local Rule E-1 of the United States District Courts for the Eastern and Western Districts provides that "no juror shall be contacted without express permission of the Court and under such conditions as the Court may prescribe."

Arkansas Rule of Evidence 606 bars a juror's testimony as to any matter occurring during the course of the jury's deliberations or to the effect of anything on the juror's mind or emotions. However, testimony is permitted on the issue of whether extraneous prejudicial information or improper outside influences affected the deliberations. See Watkins v. Taylor Seed Farms, Inc., 295 Ark. 291, 748 S.W.2d 143 (1988).

3.5:300   Improper Ex Parte Communication

Attorneys who engage in improper ex parte communications with a judge may be professionally disciplined. See Fitzhugh v. Committee on Professional Conduct, 308 Ark. 313, 823 S.W. 2d 896 (1992).

3.5:400   Intentional Disruption of a Tribunal

3.6   Rule 3.6 Trial Publicity

3.6:100   Comparative Analysis of Arkansas Rule

3.6:101      Model Rule Comparison

Arkansas has not adopted the 1994 amendments to the Model Rules. AR Rule 3.6 remains the same as the Model Rule adopted in 1983.

3.6:102      Model Code Comparison

The comparison accepted by the Arkansas Supreme Court is identical to the comparison in the Model Rules.

3.6:200   Improper Extrajudicial Statements

A so-called "gag order" restrains attorneys and perhaps parties, witnesses, law enforcement officials and others from discussing matters with the media. Arkansas courts have issued such gag orders with the purpose of ensuring criminal defendants a fair trial. See Orsini v. State, 281 Ark. 348, 665 S.W. 2d 245 (1984). Even civil litigation may permit such orders. For example, Henry v. Eberhard, 309 Ark. 336, 832 S.W. 2d 467 (1992). The wisdom of such an order is customarily left to the discretion of the trial court. Ruiz v. State, 299 Ark. 144, 772 S.W. 2d 297 (1989) (trial court refused to issue order). However, Ark. R. Crim. Pro. 38 forbids any judicial action or order that prohibits the news media from broadcasting or publishing any information in their possession relating to a criminal case.

The public's right to access to Arkansas judicial proceedings has been proclaimed in a series of judicial decisions. John J. Watkins, Keeping the Courthouse Doors Open, 1984 ARK. L. NOTES 51. See Memphis Pub. Co. v. Burnett, 316 Ark. 176, 871 S.W. 2d 359 (1994); Arkansas Television Co. v. Tedder, 281 Ark. 152, 662 S.W.2d 174 (1983). Occasional statutes bar the public from specific hearings. For example, Ar. Code — 4-75-605 (trade secrets); Ar. Code — 9-9-217 (adoption); Ar. Code — 16-13-318 (domestic relations). See John J. Watkins, The Arkansas Freedom of Information Act, 248-254, 383-384 (2nd ed. 1994).

Although court proceedings must be open to the public, the media has no right to use photographic, video or audio equipment in the courtroom. KARK-TV Channel 4, Inc. v. Lofton, 277 Ark. 228, 640 S.W. 2d 798 (1982). Administrative Order 6, adopted by the Supreme Court on July 5, 1993, permits a judge to authorize broadcasting, recording, or photographing in the courtroom and adjacent areas, provided that the participants are not distracted and the dignity of the proceedings not impaired. The general rule has five exceptions: 1) a party or an attorney may object in a timely fashion and bar any broadcasting, recording, or photographing, see Jim Halsey Co., Inc. v. Bonar, 284 Ark. 461, 683 S.W. 2d 898 (1985); 2) a witness may object to being broadcast, recorded, or photographed; 3) all matters in juvenile court, as well as adoption, divorce, custody, support, paternity and guardianship matters, are excluded from this rule; 4) in camera proceedings require consent of the court; and 5) jurors, minors, sexual victims, undercover police agents and informants are excluded from this rule. The trial court retains ultimate control and authority over the application of the general rules and may require pooling arrangements, permit only some types of publicity, require delayed broadcasting, restrict time or place of broadcasting, or impose similar requirements.

A basic principle of democracy is that the people have a right to know what occurs in the courts. Arkansas Dept. of Human Services v. Hardy, 316 Ark. 119, 871 S.W. 2d 352 (1994). Accordingly, any judicial attempt to seal court records or limit public access will be viewed with skepticism and perhaps suspicion. See Arkansas Best Corp. v. General Elec. Capital Corp., 317 Ark. 238, 878 S.W. 2d 708 (1994) (court will "look long and hard" at sealing of records).

3.6:300   Permissible Statements

Arkansas has no case law or authority on this topic.

3.6:400   Responding to Adverse Publicity

Arkansas has no case law or authority on this topic.

3.7   Rule 3.7 Lawyer as Witness

3.7:100   Comparative Analysis of Arkansas Rule

3.7:101      Model Rule Comparison

The Arkansas Rule is significantly different from the Model Rule. Arkansas imputes disqualification of the attorney-client witness to the entire law firm. Accordingly Model Rule 3.7(b) was not adopted in Arkansas. See also the reference to 3.7 in AR Rule 1.10(a). In addition, Arkansas added the fifth paragraph of the comment.

3.7:102      Model Code Comparison

The comparison accepted by the Arkansas Supreme Court is identical to the comparison in the Model Rules.

3.7:200   Prohibition of Advocate as Witness

AR Rule 3.7 is in accord with the substantial body of case law that has developed on this subject since 1968 in Arkansas. See Thomas A. Robinson, The Arkansas Code of Professional Responsibility, 33 ARK. L. REV. 605, 607, n. 13 (1980). The reasons for the rule are best summarized in Ford v. State, 4 Ark. App. 135, 628 S.W.2d 340 (1982): the attorney will be subject to impeachment and the value of his testimony may be weakened; the opposing attorney may be hampered in cross-examination and in closing arguments; the attorney would be compelled to argue his own credibility; the roles of attorney and witness are inconsistent; the attorney may have a financial interest in the outcome of the case; the jury's evaluation of the testimony might be distorted. See also Arthur v. Zearley, 320 Ark. 273, 895 S.W. 2d 928 (1995). The rule is occasionally justified on the basis that it prevents damage to the public image of attorneys and the profession. See Scott Stafford, Acting as Witness & Advocate in the Same Proceedings, ARKANSAS LAWYER (April 1991) 13.

Generally, a lawyer may not testify and still act as an advocate in the case in which he testifies, but the trial judge does have discretion to allow the attorney to serve as both a witness and an advocate in certain situations. Montgomery v. First National Bank of Newport, 246 Ark. 502, 439 S.W.2d 299 (1969). If the necessity of the lawyer's testimony cannot be anticipated until a stage of the representation at which withdrawal by the attorney or his firm would be impossible without serious injustice to his client, withdrawal is not required. This exception, however, applies only if the attorney could not have anticipated the necessity for his testimony. Id.

Both the case law and the rule itself set forth substantial hardship and uncontested issues as exceptions to the general rule. But these exceptions should be viewed as being very narrow in scope, applicable only in the most extreme case. The Court has not engaged in the balancing envisioned by Comment [4] to AR Rule 3.7 to determine when the client would suffer substantial hardship. See Scott Stafford, Acting as Witness & Advocate in the Same Proceedings, ARKANSAS LAWYER (April 1991) 13.

For example, in response to a motion to dismiss, the lead counsel for the plaintiff submitted a 29 page evidentiary affidavit. Despite the alleged hardship to the plaintiff in that the attorney had undertaken all the factual investigation and legal analysis, despite the affidavit nature of the evidence, despite the procedural nature of the issue, and despite the argument that no facts were contested, the attorney was disqualified. International Resource Ventures, Inc. v. Diamond Mining Co., 326 Ark. 765, 934 S.W. 2d 218 (1996).

The Court's language in dealing with cases where an attorney served as both an advocate and a witness is clear and frequent:

(a) "An attorney who is to testify in an action should withdraw from the litigation. On the other hand, if an attorney is going to serve as an advocate for his client, he should refrain from testifying in the action." Enzor v. State, 262 Ark. 545, 559 S.W.2d 148 (1977).

(b) "Our rule against lawyers testifying in a case in which they continue to participate as attorneys has become fixed -- we will not allow it." Aetna Cas. and Sur. Co. v. Broadway Arms Corp., 281 Ark. 128, 664 S.W.2d 463 (1984) (Hickman, J. dissenting in part and concurring in part).

(c) "It seems unfortunate that we are constantly expressing our disapproval whenever an attorney testifies in an action in which he is an advocate." Milburn v. State, 262 Ark. 267, 555 S.W.2d 946 (1977).

Similarly, the case law is clear that if the attorney has evidence that is crucial to the client's case, the ethical duty of the attorney is to serve as a witness and to withdraw as the attorney (unless one of the exceptions applies). Doubts should be resolved by declining employment. Montgomery v. First National Bank of Newport, 246 Ark. 502, 439 S.W.2d 299 (1969). By declining representation, the attorney and his firm obviously lose any fee. Accordingly, prudent attorneys should conduct their affairs to limit the possibility of serving as a witness.

The mere fact that an attorney submits an affidavit rather than giving testimony on the witness stand does not excuse the attorney from the rule that he may no longer continue as an advocate. The Supreme Court, in Bishop v. Linkway Stores, Inc., 280 Ark. 106, 655 S.W.2d 426 (1983), stated: "We perceive no substantial difference between the situation of one who gives testimony in person and one who gives it by affidavit. Both forms of sworn testimony fall within the reason for the prohibitory rule: 'the role of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the cause of another, while that of a witness is to state facts objectively.'" Nor is the attorney permitted to testify as to "procedural" matters. Arthur v. Zearley, 320 Ark. 273, 895 S.W. 2d 928 (1995) (in class certification hearing, plaintiff's attorneys testified as to the medical device in question, the injuries suffered, the potential compensation and other issues). Also, an attorney may not serve as an expert witness in a proceeding in which he also acts as an advocate. Milburn v. State, 262 Ark. 267, 555 S.W.2d 946 (1977). Nor can an attorney who was a witness in the trial of a case participate in the appellate proceeding. Id. The rule against the attorney-witness applies equally to administrative tribunals. See International Paper Co. v. Wilson, 34 Ark. App. 87, 805 S.W. 2d 668 (1991) (Workers' Compensation Commission).

However, the rule against an attorney serving as both a witness and an advocate in the same proceeding does not mean that opposing counsel may call the attorney as a witness merely to have him disqualified from continuing to serve as an advocate. Orsini v. Larry Moyer Trucking, Inc., 310 Ark. 179, 833 S.W. 2d 366 (1992); McCoy Farms, Inc. v. J & M McKee, 263 Ark. 20, 563 S.W.2d 409 (1978). Nor may opposing counsel use the rule to require sequestration of an attorney for the opposition. Foster v. State, 285 Ark. 363, 687 S.W.2d 829 (1985). Nevertheless, regardless of who calls the attorney as a witness, the likelihood that the attorney will testify concerning disputed facts may support disqualification. Purtle v. McAdams, 317 Ark. 499, 879 S.W. 2d 401 (1994).

The rule is applicable in criminal cases as well. A prosecutor who assumes an active role in the investigation of a crime becomes a potential witness, for either side, and thus is barred from serving as the attorney for the state. Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987) (prosecutor's testimony and argument as to the interrogation procedures employed required reversal of the conviction). Compare Chelette v. State, 308 Ark. 364, 824 S.W. 2d 389 (1992) (prosecutor's testimony went to an uncontested issue); Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988) (prosecutor did not play an active role). The rule does not permit the defense counsel to call the prosecutor as a witness and thereby disqualify him. Williams v. State, 300 Ark. 84, 776 S.W.2d 359 (1989). Prosecutors should not participate in criminal investigations in such a fashion that might require them to be witnesses. See Beebe v. State, 301 Ark. 430, 784 S.W. 2d 765 (1990).

If an attorney serves as an advocate for his client right up to trial, and then learns that he must disqualify himself from further representation because he will likely be called as a witness, the attorney may still be compensated for the work already done. Aetna Cas. and Sur. Co. v. Broadway Arms Corp., 281 Ark. 128, 664 S.W.2d 463 (1984), holds that the attorney may split a contingent fee with the attorney who replaces him. The dissent, on the other hand, would have barred the attorney from collecting a contingent fee, because like an expert witness, see AR Rule 3.4(b), Comment [3], he would find it difficult, if not impossible, to testify objectively when he retained a stake in the outcome. However, an attorney who realizes from the commencement of the representation the necessity, perhaps merely the potential, of participating as a witness, cannot share in a contingent fee. Mobley v. Harmon, 313 Ark. 361, 854 S.W. 2d 348 (1993).

If an attorney does serve as both an advocate and a witness in the same proceeding, the range of possible sanctions is broad. If the attorney testified as to a critical issue, reversal is possible. Boling v. Gibson, 266 Ark. 310, 584 S.W.2d 14 (1979); Rushton v. First National Bank of Magnolia, 244 Ark. 503, 426 S.W.2d 378 (1968). If it is possible to decide the case without regard to the attorney's testimony, the appellate court will simply disregard this testimony. Arthur v. Zearley, 320 Ark. 273, 895 S.W. 2d 928 (1995); McWilliams v. Tinder, 256 Ark. 994, 511 S.W.2d 480 (1974). However, the fact that an attorney violates the ethical standards does not necessarily render the attorney's testimony inadmissible, nor render the attorney incompetent as a witness. Weathersbee v. Wallace, 14 Ark. App. 174, 686 S.W.2d 447 (1985). The violation alone does not require automatic reversal of a favorable judgment. McIntosh v. Southwestern Truck Sales, 304 Ark. 224, 800 S.W. 2d 431 (1990).

In a number of cases where the attorney's testimony did not appear to be critical to the outcome of the case, the Supreme Court issued a strong disapproval of the attorney's actions, but did not allow this to affect the outcome of the case. See, e.g. Jones v. Hardesty, 261 Ark. 716, 551 S.W.2d 543 (1977); Canal Ins. Co. v. Hall, 259 Ark. 797, 536 S.W.2d 702 (1976); Watson v. Alford, 255 Ark. 911, 503 S.W.2d 897 (1974). The Supreme Court has frequently commented on the propriety of an attorney testifying in an action in which he also served as an advocate even though the error was not raised on appeal. See, e.g., Old American Life Insurance Company v. Taylor, 244 Ark. 709, 427 S.W.2d 23 (1968).

3.7:300   An Affiliated Lawyer as Advocate (Imputed Disqualification)

In sharp contrast with the Model Rule, AR Rule 3.7 follows prior Arkansas case law in clearly holding that if one member of a firm is likely to be a necessary witness about any matter in conflict, then the testifying attorney's entire firm must be disqualified from acting as an advocate in the case. Boling v. Gibson, 266 Ark. 310, 584 S.W.2d 14 (1979).

The addition of Comment [5] to AR Rule 3.7 in 1990 clarifies the law, see Arkansas Blue Cross & Blue Shield, Inc. v. Doe, 22 Ark. App. 89, 733 S.W.2d 429 (1987), and offers some amelioration to the strictness of the Arkansas version of the rule. Not only may an attorney represent himself in court (for example, in a divorce action, in personal injury litigation or in contractual disputes), but the attorney may be represented by another lawyer in the same firm. To prevent the dangers that underlie the rule itself, the trial court may inform the jury that the litigant and the attorney are indeed law partners.

The requirement that the entire firm withdraw is not applicable in the case of a prosecutor's office with several deputies. Ford v. State, 4 Ark. App. 135, 628 S.W.2d 340 (1982). In Ford, the chief prosecutor was a witness to a crime and had to testify at trial, but one of the deputies from the prosecutor's office was allowed to prosecute the state's case. The Court of Appeals held that the entire "firm" need not withdraw in this type situation because the relationship between the prosecutor and client (the state) is fundamentally different from the ordinary attorney-client relationship in that the prosecutor and his deputies have no financial interest in the outcome; the prosecutor must disclose any evidence that tends to negate the guilt of the defendant; and prosecutors have a duty to seek justice, not merely conviction. See AR Rule 3.8.

3.8   Rule 3.8 Special Responsibilities of a Prosecutor

3.8:100   Comparative Analysis of Arkansas Rule

3.8:101      Model Rule Comparison

Arkansas has not adopted Model Rule 3.8(f,g). The Arkansas Rule remains the same as the Model Rule adopted in 1983. However, Arkansas added the fourth paragraph to the comment.

3.8:102      Model Code Comparison

The comparison accepted by the Arkansas Supreme Court is identical to the comparison in the Model Rules.

3.8:200   The Decision to Charge

For a critical discussion of contingency agreements in which prosecutors offer dismissal of charges, immunity from prosecution, monetary payment or the return of forfeited property in return for favorable testimony, see Samuel A. Perroni and Mona J. McNutt, Criminal Contingency Fee Agreements: How Fair Are They?, 16 U. ARK. LITTLE ROCK L.J. 211 (1994).

3.8:300   Efforts to Assure Accused's Right to Counsel

Arkansas has no case law or authority on this topic.

3.8:400   Seeking Waivers of Rights from Unrepresented Defendants

Arkansas has no case law or authority on this topic.

3.8:500   Disclosing Evidence Favorable to the Accused

Ark. R. Criminal Proc. 17 requires the prosecuting attorney to disclose, upon a timely request, specified material and information. In addition, the prosecutor has a duty to Ņpromptly upon discovering the matter, disclose to defense counsel any material or information within his knowledge, possession, or control, which tends to negate the guilt of the defendant as to the offense charged or would tend to refude the punishment therefor.Ó

3.8:600   Monitoring Extrajudicial Statements by Law Enforcement Officials

Arkansas has no case law or authority on this topic.

3.8:700   Issuing a Subpoena to a Lawyer

See 3.8:101.

3.8:800   Making Extrajudicial Statements

See 3.6:200.

3.8:900   Peremptory Strikes of Jurors

Numerous Arkansas cases have discussed the constitutional standards involved in the exercise of peremptory challenges by prosecutors. For example, Roseby v. State, 329 Ark. 554, 953 S.W. 2d 32 (1997) (Batson challenge rejected); Bragg v. State, 328 Ark. 613, 946 S.W. 2d 654 (1997) (challenge rejected); Hollowell v. State, 39 Ark. App. 39, 953 S.W. 2d 588 (1997) (objection to gender based use of peremptory challenge rejected). None of the cases appear to have considered the issue in terms of the ethical standards expected of prosecutors.

3.9   Rule 3.9 Advocate in Nonadjudicative Proceedings

3.9:100   Comparative Analysis of Arkansas Rule

3.9:101      Model Rule Comparison

The Arkansas Rule is the same as the Model Rule.

3.9:102      Model Code Comparison

The comparison accepted by the Arkansas Supreme Court is identical to the comparison in the Model Rules.

3.9:200   Duties of Advocate in Nonadjudicative Proceedings

The provisions of AR Rule 3.7 are applicable to administrative proceedings. See International Paper Co. v. Wilson, 34 Ark. App. 87, 805 S.W. 2d 668 (1991) (Workers' Compensation Commission).