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Ohio Legal Ethics Narrative
Ohio Rules 3.7(a) and (b) are substantively identical to the Model Rule.
Division (c), dealing with testimony by a government lawyer participating in a case, has no counterpart in the Model Rule.
The following sections of the Ohio Code of Professional Responsibility are listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 3.7: DR 5-101(B) & 5-102.
- Primary Ohio References: Ohio Rule 3.7(a)
- Background References: ABA Model Rule 3.7(a)
- Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 5.58-5.67, 5.69 5.74
- Commentary: ABA/BNA § 61:501; ALI-LGL § 108; Wolfram § 7.5
The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 5.58-5.67, 5.69-5.74 (1996).
Advocate-witness rule - Introduction: As a general proposition, Ohio Rule 3.7 prohibits a lawyer from serving as both trial counsel and a witness in the same litigation, because of the inherent incompatibility of these roles. This prohibition is sometimes referred to as the "advocate-witness rule." While the Rule prohibits this conduct in many instances, the bar is not absolute. And, where the prohibition applies, it is not imputed to other lawyers in the firm with which the lawyer is associated. See section 3.7:300. (Imputation does apparently apply, however, to associated government lawyers. See section 3.7:400.)
Potential violations of this prohibition frequently are relied upon to support motions to disqualify counsel. Less frequently, violations have served as grounds for professional discipline. See Office of Disciplinary Counsel v. Collins, 71 Ohio St.3d 310, 643 N.E.2d 1082 (1994) (violation of former OH DR 5-101(B) & 5-102(A); public reprimand). If a trial court allows lawyer testimony where testifying constitutes a violation of the rule, a new trial may be required. In 155 North High, Ltd. v. Cincinnati Insurance Co., No. 93 AP-45, 1993 Ohio App. LEXIS 4815, (Franklin Sept. 28, 1993), aff'd on other grounds, 72 Ohio St.3d 423, 650 N.E.2d 869 (1995), the court found a violation of the advocate-witness rule caused by lawyer testimony that was sufficiently prejudicial under the circumstances to require a new trial. The court acknowledged that some states believe that violations of the advocate-witness rule should be policed solely through the disciplinary process, not through the additional remedy of a new trial, but rejected that limitation. Rather, the court indicated that a new trial may be ordered for violation of the rule if the error could have improperly tainted the proceedings. The opinion provided the following guidance for making this assessment:
We think the best approach to be taken in this situation is to examine the record to determine if the error could have improperly tainted the proceedings. [citation omitted] If the case against the opposing party was close and it cannot be said that the judgment is free from suspicion, then prejudice is more likely to be found. Moreover, the clearer the violation of the rule, the more justification there is for the court to take action. As astutely recognized by the court in Hubbard v. Hubbard (Fla. App. 1970), 233 So.2d 150, 154, to affirm a judgment for a party whose lawyer has breached the rule through tactical effort " * * * would be to condone the breach and, perhaps, to encourage others to disregard the dictates of the canon * * *."
1993 Ohio App. LEXIS 4815, at *20-21 (ellipses in original).
Advocate-witness rule - Underlying policies: The basic theory underlying the prohibition on acting as both an advocate and a witness in the same proceeding is that the roles are inconsistent. See generally Ohio Rule 3.7 cmts.  & . Like the former OHCPR, the Rules do not prohibit a lawyer from serving as counsel for a client in one proceeding and as a witness in a separate proceeding involving the same client. See Toledo Bar Ass'n Op. 88-1 (Feb. 18, 1988). It is the convergence of roles in one proceeding that creates the conflict. Each role may be undermined should the lawyer attempt to play both. Avoiding this type of conflict serves to protect not only the client, but the opposing party and the integrity of the legal system as well. 155 North High, Ltd. v. Cincinnati Ins. Co., 72 Ohio St.3d 423, 650 N.E.2d 869 (1995) (recognizing these multiple interests).
The lawyer who serves as both an advocate and a witness in the same proceeding may be more easily impeached for bias as a witness, because of the combined roles. Ohio State Bar Ass'n Formal Op. 33 (Dec. 12, 1980). On the other hand, because the lawyer/witness often builds a special rapport with the trier of fact in the lawyer's role, it may, as a practical matter, interfere with opposing counsel's ability effectively to cross-examine or impeach the lawyer/witness.
From the lawyer's perspective, serving as both an advocate and a witness might place the lawyer in the awkward position of having to impeach his own testimony to serve the interests of his client, or to argue his own credibility. A jury may become confused over the boundaries between lawyer testimony and lawyer advocacy.
From a policy perspective more generally, there is a fear that the lawyer who also serves as a witness may develop an animosity toward opposing counsel, after being subject to cross-examination or impeachment, that will result in a lack of cooperation in the litigation or a loss of objectivity in considering settlement. Gen. Mill Supply Co. v. SCA Servs., Inc., 697 F.2d 704 (6th Cir. 1982) (articulating this concern as part of multi-part balancing test to resolve advocate-witness disqualification issues).
Counterbalanced against these concerns is the right of a party to counsel of choice. Reamsnyder v. Jaskolski, No. L-84-447, 1985 Ohio App. LEXIS 8533, at *8 (Lucas Aug. 23, 1985) ("The rule is designed to protect the interest of all the parties and the reputation of the legal community. However, the disqualification of an attorney is a drastic step and should not be made quickly; for such a decision necessarily infringes upon the inviolable right to counsel of one's choice." (citation omitted)); Banque Arabe et Internationale D'Investissement v. Ameritrust Corp., 690 F. Supp. 607, 613 (S.D. Ohio 1988) ("A party's right to select its own counsel is an important public right and a vital freedom that should be preserved; the extreme measure of disqualifying a party's counsel of choice should be imposed only when absolutely necessary."). Where the issue arises unexpectedly after representation has been underway, withdrawal or disqualification can be particularly disruptive. Nevertheless, the basic premise of the Rule is that in most cases it is better for the lawyer to serve as a witness and withdraw as trial counsel than the reverse. Lawyers are plentiful, but witnesses are few.
advocate-witness rule's prohibitions - In general: Subject to the exceptions discussed below, the advocate-witness rule states as follows:
A lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness . . . .
Ohio Rule 3.7(a).
In determining whether the advocate-witness rule applies, several subsidiary issues must be addressed. The threshold inquiry is whether the particular proceeding in which the lawyer may be a witness is one to which the prohibition applies. Even if serving as both an advocate and a witness in a proceeding might otherwise be barred, the prohibition is not absolute. The extent to which the prohibition can be avoided by client consent or because the conduct falls into one of the exceptions recognized in the Rule also must be addressed. Finally, assuming the advocate-witness rule bars a particular lawyer from representing a client in litigation, a question remains concerning the extent to which the prohibition should be extended to other lawyers with whom that lawyer practices.
Advocate-witness rule's prohibitions – Advocate at trial: The advocate-witness prohibition arises only when the lawyer is "act[ing] as an advocate at a trial" in which the lawyer is likely to be called as a necessary witness. This advocate-at-trial limitation raises several problems of interpretation.
First, when does a matter involve "trial"? Is the prohibition limited to court proceedings, or does it apply more broadly to adjudications before any tribunal? Should it extend as well to nonadjudicative dispute-resolution procedures such as arbitration? While the word "tribunal" is not used in the Rule itself, it is used in the comments, and thus the Rule 1.0(n) definition of that term applies. Pursuant thereto, it includes "a court, an arbitrator in a binding arbitration proceeding, or a legislative body, administrative agency, or other body acting in an adjudicative capacity," which capacity contemplates a neutral official rendering a binding legal judgment after the presentation of evidence/legal argument by the parties. Id. Thus, it seems reasonably clear that "trial" will trigger the restrictions of Rule 3.7 in any adjudicative proceeding.
Consistent with this result, the State Employment Relations Board concluded that the advocate-witness prohibitions of the former OHCPR applied to lawyers representing parties in unfair-labor-practice adjudications conducted by the agency. In re City of Cleveland, SERB 94-021 (Oct. 26, 1994), aff'd, State Employment Relations Bd. v. City of Cleveland, 106 Ohio App.3d 128, 665 N.E.2d 693 (Cuyahoga 1995); In re Springfield Local Sch. Dist. Bd. of Educ., SERB 94-020 (Oct. 26, 1994), aff'd, State Employment Relations Bd. v. Springfield Local Sch. Dist. Bd. of Educ., 104 Ohio App.3d 191, 661 N.E.2d 278 (Summit 1995). SERB's position was upheld on appeal, although the court stressed SERB's statutory authority to regulate the practice of those appearing before it, rather than the meaning of disciplinary rules involved. 106 Ohio App.3d 128, 665 N.E.2d 693; 104 Ohio App.3d 191, 661 N.E.2d 278.
The Rule 3.7 prohibition is directed to a lawyer "act[ing] as an advocate." The Code "employment" language could be read as barring any work on the litigation matter; at a minimum it barred any work involving presence in the courtroom. See State ex rel. Berry v. Henderson, No. CA 1892, 1983 Ohio App. LEXIS 13323, at *3 (Clark Oct.3, 1983) (affirming trial court finding that prosecutor's testimony would violate the advocate-witness rule and the order disqualifying him "from either active or passive participation in the courtroom at trial, so that he may have no influence upon the jury other than as a witness"). This would appear no longer to be the law under the advocate-at-trial formulation of Rule 3.7(a). Moreover, because the concerns underlying the prohibition focus on the conflict between serving as both advocate and witness, it makes sense that the prohibition be read as applying only to counsel taking an active role in the trial and to allow the lawyer/witness to engage in less visible support of the trial effort. Note that under the weight of Model Rule precedent, "unlike its Model Code predecessor," the identical language in MR 3.7 does not preclude a likely lawyer/witness from participating in pretrial work on the case or from participating in post-trial appeals. ABA, Annotated Model Rules of Professional Conduct 364 (6th ed. 2007) (commentary) (section entitled "Disqualification Is Generally Limited To Acting As Trial Counsel").
Advocate-witness rule's prohibitions - Acting as a witness: Assuming that a lawyer is or will be acting as an advocate at a trial, a problem arises only where the lawyer "is likely to be a necessary witness." Rule 3.7(a). Thus, for the prohibition to apply, it must be contemplated that the lawyer will likely be a witness in a matter or provide testimonial evidence. Even under the Code, nontestimonial input by a lawyer in a case, such as submitting briefs or presenting oral argument, was perfectly proper and did not invoke the advocate-witness prohibition. See Bank One Lima, N.A. v. Altenburger, 84 Ohio App.3d 250, 616 N.E.2d 954 (Van Wert 1992) (trial court reversed for treating lawyer's brief, identification of expert witnesses to be called, and identification of documents, as testimonial acts triggering disqualification for violation of advocate-witness prohibition).
The language of the Rule does not expressly limit the concern to the lawyer being called to the stand as a witness at trial. A lawyer's testimonial affidavit, for example, filed in connection with a summary judgment motion could trigger the Rule and, therefore, the need for disqualification or sanction. See, under the Code, Bank One Lima, N.A. v. Altenburger, 84 Ohio App.3d 250, 616 N.E.2d 954 (discussing disqualification for violation of advocate-witness prohibition in summary-judgment context; reversing disqualification ruling where lawyer's affidavit stated only that attached documents were received from opposing counsel). See generally ABA, Annotated Model Rules of Professional Conduct 362-63 (6th ed. 2007) (commentary) (collecting lawyer affidavit cases, including Bank One Lima).
Advocate-witness rule's prohibitions - Likelihood of being called as "necessary" witness: The formulation under Rule 3.7(a) is both less and more restrictive than the former disciplinary rule. The "likely-to-be" called language is broader than the Code's test, under which the lawyer must have "known" or it must have been "obvious" that he or she would be called. On the other hand, the prohibition under 3.7(a) applies only if the lawyer is likely to be a "necessary" witness, not just a witness. "Generally, if a lawyer is to be disqualified [under Rule 3.7] because an opponent intends to call the lawyer as a witness, there must be a showing that the proposed testimony is relevant, material, and unobtainable elsewhere." ABA, Annotated Model Rules of Professional Conduct 361 (6th ed. 2007) (commentary) (collecting cases). If the lawyer's testimony would be duplicative or obtainable elsewhere, disqualification is not called for. Id. at 362.
Advocate-witness rule's prohibitions - Client consent to lawyer testimony: The language of the Rule focuses on issues and decisions largely independent of the client's desires. The question is whether the lawyer is likely to be called as a necessary witness. The Rules do not permit the client to consent to the conflict and counsel to remain. See ABA, Annotated Rules of Professional Conduct 362 (6th ed. 2007) (commentary) (citing cases imposing disqualification of lawyer whose testimony is deemed necessary, even if client willing to forgo such testimony, inasmuch as Rule designed to protect opposing parties and integrity of judicial system as a whole). As the Ohio Supreme Court stated with respect to the Code rule in 155 North High, Ltd. v. Cincinnati Insurance Co., 72 Ohio St.3d 423, 427, 650 N.E.2d 869, 872 (1995) (footnote omitted):
DR 5-102(A), unlike other rules in the Code of Professional Responsibility, makes no provision for client waiver of its application. This is so because the rule against a lawyer serving in the dual role of witness and advocate is designed to protect three distinct interests: those of the client, those of the adverse party, and that of ensuring the institutional integrity of the legal system as a whole.
Nevertheless, because employment of the advocate-witness rule works to divest clients of the counsel of their choice, some courts, particularly in the disqualification context, have taken into account the client's interest in retaining counsel of choice in interpreting the underlying rule.
For example, in Banque Arabe et Internationale D'Investissement v. Ameritrust Corp., 690 F. Supp. 607, 613 (S.D. Ohio 1988), the court, applying the OHCPR, noted that while the decision whether the lawyer ought to be called as a witness is an independent one, "the judgment of a sophisticated and informed client as to how best to conduct its case and protect its interests in determining to call or not to call counsel as a witness should be highly respected and accorded great deference." However, at least one Ohio court has questioned whether Banque Arabe remains good law. Libbey-Owens-Ford Co. v. Martin, No. 96 APE02-215, 1996 Ohio App. LEXIS 3930 (Franklin Sept. 12, 1996).
In State v. Today's Bookstore, Inc., 86 Ohio App.3d 810, 621 N.E.2d 1283 (Montgomery 1993), the court reviewed a common pleas court ruling disqualifying, on the day of trial, a city prosecutor who was to be called as a defense witness. When the city said it could not substitute another attorney on the day of trial, the case was dismissed for want of prosecution. While the appellate court found the prosecutor should not have been called as a witness at all, the court went on to conclude that even if it had been proper to call the prosecutor as a witness for the defense, disqualification was not required. The court stated:
Division (B) of the Rule [OH DR 5-102(B)] is obviously intended to protect the client. In this case, if the city of Dayton, a sophisticated litigant, was satisfied that the advantages of avoiding substituting trial counsel on the day of trial outweighed the disadvantages of having its trial counsel called to testify on behalf of the adverse party (on matters of dubious relevance to any issue in the case), that was a decision for the city to make. It would serve no useful purpose to "protect" the interests of the city by dismissing its prosecution with prejudice as a consequence of its refusal to substitute counsel when the worst that could have happened as a result of its decision to proceed with Popp as its counsel is that it might have suffered an adverse jury verdict as a consequence. To have insisted on protecting the city's interests by threatening it with dismissal of its prosecution with prejudice was an abuse of discretion.
86 Ohio App. at 825, 621 N.E.2d at 1293.
Whether this approach survived 155 North High, Ltd., given the latter's clear statement disavowing a role for client consent, seems unlikely. See Libbey-Owens-Ford Co. v. Martin, No. 96 APE02-215, 1996 Ohio App. LEXIS 3930 (Ohio App. Franklin Sept. 12, 1996) (finding that 155 North High renders client consent irrelevant; issue under former disciplinary rule was whether lawyer "ought to testify" on client's behalf). Accord A.B.B. Santec West, Inc. v. Weinsten, 2007 Ohio 2116, 2007 Ohio App. LEXIS 1981 (Cuyahoga) (“ought to testify” test “establishes an objective standard,” id. at para. 23, citing Libby-Owens).
One respect in which client consent does come into play under the Rule is set forth in Comment . It notes that in determining whether it is permissible to act as an advocate in a trial where the lawyer will be a necessary witness,
the lawyer also must consider that the dual role may give rise to a conflict of interest that will require compliance with Rule 1.7 or 1.9. . . . [Discussing examples of 1.7 and 1.9 conflicts in context of testimony otherwise falling within (a)(3) substantial-hardship exception.] Determining whether such a conflict exists is primarily the responsibility of the lawyer involved. If there is a conflict of interest, the lawyer must secure the client's informed consent, confirmed in writing. In some cases, the lawyer will be precluded from seeking the client's consent. See Rule 1.7[(c)].
Rule 3.7 cmt.  (emphasis, ellipsis, and bracketed material added).
Exceptions to the advocate-witness rule - In general: Ohio Rule 3.7(a) recognizes three exceptions to the application of the advocate-witness prohibition to testimony by the lawyer. Thus, testimony will be permitted if any one or more of the following apply:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case;
(3) the disqualification of the lawyer would work substantial hardship on the client.
Exceptions to the advocate-witness rule - Testimony on uncontested matters: The first exception recognizes that sometimes a lawyer's testimony, while necessary, will be so uncontroversial that the harm the advocate-witness rule seeks to deter will not arise from the lawyer's assumption of the dual roles of advocate and witness. See Rule 3.7 cmt.  (ambiguities in dual role "purely theoretical"). Under these circumstances, the client's interest in being represented by counsel of choice takes precedence. For example, under the Code, where an attorney secured an affidavit from a mortgage loan company's appraiser in connection with a suit by a buyer against a seller for a material defect, and the buyer later sought to sue the appraiser, the lawyer could properly represent the buyer. The ethics committee concluded that even if the lawyer were called to testify about obtaining the affidavit, the testimony was likely to relate solely to an uncontested matter or a matter of formality, for which there was no reason to believe that substantial evidence would be entered in opposition. Under these circumstances, rejection of employment or withdrawal was not required. Toledo Bar Ass'n Op. 83-1 (Nov. 8, 1983); accord Lucas v. Barrett, No. 94 CA1998, 1994 Ohio App. LEXIS 5203 (Ross Nov. 16, 1994) (testifying that an affidavit was notarized in accordance with law falls within formality exception); Univ. Carnegie Med. Partners Ass'n v. Weiss & Kramer, Inc., No. 65422, 1994 Ohio App. LEXIS 2690 (Cuyahoga June 23, 1994) (in action for rent and other charges, trial-court decision not to disqualify the lawyer whose testimony went to formalities of lease agreement and to points already conceded by opponent, thereby satisfying former OH DR 5-102(A) exceptions, was not abuse of discretion). [Note that the fourth exception under the Code, testifying to matters of formality, has not been expressly carried forward into Rule 3.7(a). It is largely, if not entirely, subsumed by the division (a)(1) exception for uncontested issues.]
Exceptions to the advocate-witness rule - Testimony concerning the value of legal services rendered: The second exception in division (a) is based primarily on notions of efficiency. See Rule 3.7 cmt.  (exception avoids need for second trial with new counsel to resolve issue). In cases in which attorney fees may be awarded, testimony is necessary to establish a right to a particular amount of compensation. This phase of the litigation often arises after the case in chief has been resolved. To require new counsel to come into the case at the attorney-fee stage would be too costly. Further, because the issues involved are, to a large degree, collateral to the merits of the case in chief, the concerns that underlie the advocate-witness rule are less likely to be implicated.
In so testifying, the lawyer may need to divulge client confidences. Ohio Rule 1.6(b)(4) recognizes an exception to client confidentiality duties where "necessary to establish a claim . . . on behalf of the lawyer," which includes actions to collect a fee. See section 1.6:630.
Exceptions to the advocate-witness rule - Substantial hardship to the client: The third and most controversial exception in Rule 3.7(a) applies if refusing to allow the lawyer to remain as trial counsel "would work a substantial hardship on the client." Rule 3.7(a)(3).
"Unlike the predecessor Model Code provision, DR 5-101(B)(4), which limited this exception to cases in which the lawyer is 'of distinctive value . . . as counsel in the particular case,' Rule 3.7 requires 'a balancing . . . between the interests of the client and those of the tribunal and the opposing party.' Model Rule 3.7 cmt. ." ABA, Annotated Model Rules of Professional Conduct 365 (6th ed. 2007) (commentary) (ellipses in original).
Comment  sheds further light on the inquiry to be made:
Whether the tribunal is likely to be misled or the opposing party is likely to suffer prejudice depends on the nature of the case, the importance and probable tenor of the lawyer's testimony, and the probability that the lawyer's testimony will conflict with that of other witnesses. Even if there is a risk of such prejudice, in determining whether the lawyer should be disqualified, due regard must be given to the effect of disqualification on the lawyer's client.
The ABA Annotated Rules provide additional insight by noting several factors that will be considered on the "substantial hardship" issue, including:
the amount of time and money the client has invested in the lawyer;
the "loss of extensive knowledge of a case based upon a long-term relationship between the client and counsel and substantial discovery conducted in the actual litigation," quoting from Brown v. Daniel, 180 F.R.D. 298 (D.S.C. 1998) [sounds a lot like the DR 5-101(B)(4) "distinctive nature" test]
forseeability of the need for the lawyer's testimony (citing, inter alia, Office of Disciplinary Counsel v. Collins, 71 Ohio St.3d 310, 643 N.E.2d 1082 (Ohio 1994) (lawyer defending clients in action attacking real-estate transaction he had handled for them));
the actual consequences to the client (citing, inter alia, Mentor Lagoons, Inc. v. Teague, 71 Ohio App.3d 719, 595 N.E.2d 392 (Lake 1991) (increased expense and loss of alleged "unique relationship" with lawyer did not qualify as substantial hardship under Code). [Teague in fact relied on the failure to demonstrate the existence of the lawyer's "distinctive value."]
ABA, Annotated Model Rules of Professional Conduct 365-66 (6th ed. 2007) (commentary).
Exceptions to the advocate-witness rule - Right to self-representation: A potential conflict exists between the right to self-representation and the advocate-witness rule where a lawyer seeks to represent himself in an action and also testify as a witness in the proceeding. The United States Supreme Court has suggested, in dictum, that this situation presents potential ethical difficulties that might make the lawyer's testifying inappropriate. Kay v. Ehrler, 499 U.S. 432 (1991). See generally Toledo Bar Ass'n Op. 86-7 (Mar. 12, 1986) (recognizing lawyer's right to represent himself in probate court proceedings, but advising that it would be imprudent to do so in light of concerns of advocate-witness rule). Nevertheless, under the Code, Ohio courts found a right to testify in such circumstances and concluded that the practice did not run afoul of the advocate-witness rule. 155 North High, Ltd. v. Cincinnati Ins. Co., No. 93 AP-45, 1993 Ohio App. LEXIS 4815, at *16 (Franklin Sept. 28, 1993) ("Of course, if an attorney is representing himself, then he has a right to do so and to testify and hence, DR 5-102(A) could not serve to prohibit him from assuming such dual roles"), aff'd on other grounds, 72 Ohio St.3d 423, 650 N.E.2d 869 (1995). But cf. Morrison v. Gugle, 142 Ohio App.3d 244, 755 N.E.2d 404 (Franklin 2001) (reversing trial-court refusal to disqualify testifying lawyer from acting as Gugle's attorney where lawyer was also a defendant). See ABA, Annotated Model Rules of Professional Conduct 366 (6th ed. 2007) (commentary) (stating that MR 3.7(a), substantively identical to Ohio Rule 3.7(a), does not bar the pro se lawyer-litigant from testifying).
So far as we are aware, the first Ohio case applying a Rule of Professional Conduct, in this instance Rule 3.7, is Horen v. Bd. of Educ., 174 Ohio App.3d 317, 2007 Ohio 6883, 882 N.E.2d 14. One of the issues in Horen was whether one of the plaintiffs, a lawyer, could represent herself while testifying to substantive facts in the case. The court of appeals held that she could and reversed the trial court’s disqualification order in this respect. (Although the court said that it could not find any other Ohio appellate court decision addressing the issue, we believe that the 155 North High opinion by the Tenth District Court of Appeals, cited above, does so and is in accord with the result in Horen on the self-representation issue. Also in accord is the opinion by federal Magistrate Judge Kemp in Cooke v. AT&T, No. 2:05-cv-374, 2006 U.S. Dist. LEXIS 32489 (S.D. Ohio, May 23, 2006).
The other issue in Horen was whether trial court abused its discretion in disqualifying, on advocate-witness grounds, the plaintiff lawyer from representing her husband and their child, when “it can be anticipated that [Mrs.] Horen will be providing substantial factual testimony that is central to the claims in this proceeding.” Id. at para. 25. The appellate court ruled in this instance that there was no abuse of discretion; the only one of the three express exceptions set forth in the Rule that could be applicable, said the court, was the substantial hardship provision in Rule 3.7(a)(3), and plaintiffs, who bore the burden of proof on this issue, presented no evidence of such hardship or, looking to prior case law under the Code, the legal expertise constituting “distinctive value” under former DR 5-101(B)(4), as read by the Supreme Court’s opinion in 155 N. High, 72 Ohio St.3d 423, 429, 650 N.E.2d 869, 873-74. Preliminary to reaching this conclusion, the Horen court of appeals also reviewed prior decisions holding that a court faced with an advocate/witness disqualification issue must apply a two-part analysis: first, to determine whether the lawyer’s testimony is admissible and, if so, determining whether disqualification is necessary and whether any of the exceptions apply. The burden of proving disqualification is on the movant; the burden of proving that an exception applies is on the lawyer claiming the exception. “All of these principles are applicable to an analysis of the application of the new rules.” Horen at para. 22. Contra, as to the need for disqualification where a party/attorney is also representing his or her spouse, is Magistrate Kemp’s opinion in Cooke v. AT&T supra (finding the result of disqualification such as that in Horen results from a “wooden” application of DR 5-101(B) and 5-102(A); disqualification motion denied).
Motions to disqualify and the advocate-witness rule: As discussed above, subject to limited exceptions, the Rule prohibits a lawyer from acting as an advocate at a trial in which the lawyer is likely to be a necessary witness. Rule 3.7(a). The issue often comes to a head through a disqualification motion seeking the removal of counsel on the grounds that the lawyer's continuing involvement in the case would violate the advocate-witness rule. In Mentor Lagoons, Inc. v. Rubin, 31 Ohio St.3d 256, 510 N.E.2d 379 (1987), the Ohio Supreme Court sought to provide trial courts with guidance in addressing this problem:
As a first step, a court must determine whether the proposed testimony is admissible, without regard to any ethical violation that the attorney's testifying might involve. Mentor Lagoons v. Rubin (syllabus two). If the testimony would not be admissible, that ends the inquiry. If the testimony would be admissible, however, the court must allow the testimony to be presented if offered. Rubin (syllabus one).
If the testimony is admissible, the lawyer involved may move to withdraw or opposing counsel may move to disqualify the testifying lawyer, or the court may do so sua sponte. The court must then determine whether any of the exceptions to the advocate-witness prohibition apply "and, thus, whether the attorney may testify and continue to provide representation." Mentor Lagoons v. Rubin (syllabus two); see Hall v. Tucker, 169 Ohio App.3d 520, 2006 Ohio 5895, 863 N.E.2d 1064 (Jackson) (reversing disqualification order where trial court, contrary to first step of Rubin analysis, failed to determine admissibility of lawyers' testimony); Envtl. Network Corp. v. TNT Rubbish Disposal, Inc., 141 Ohio App.3d 377, 751 N.E.2d 502 (Cuyahoga 2001) (likewise reversing disqualification where trial court failed to determine admissibility of lawyers' testimony and did not consider applicability of exceptions to former OH DR 5-102). Accord A.B.B. Santec v. Weinsten, 2007 Ohio 2116, 2007 Ohio App. LEXIS 1981 (Cuyahoga). Without an applicable exception, disqualification is appropriate, for it would be unethical for the trial court judge to participate knowingly in what may be a disciplinary violation. Mentor Lagoons, Inc. v. Teague, 71 Ohio App.3d 719, 595 N.E.2d 392 (Lake 1991). In making these determinations, the trial court is not overstepping its bounds by deciding whether a disciplinary rule will be violated (an issue within the exclusive jurisdiction of the Ohio Supreme Court), but rather is preventing a potential violation through the exercise of its inherent authority to regulate practice before it and to protect the integrity of its proceedings. Rubin (syllabus two). Cf. In re City of Cleveland, SERB 94-021, 3-133 (Oct. 26, 1994) ("SERB must disqualify a lawyer or a law firm if it is necessary to do so in order to prevent a breach of the [OHCPR] by the lawyer or law firm, especially where failure to do so may result in serious questions regarding due process or the integrity of the proceedings."), aff'd, State Employment Relations Bd. v. City of Cleveland, 106 Ohio App.3d 128, 665 N.E.2d 693 (Cuyahoga 1995). If the testimony is both admissible and not within any of the exceptions to the advocate-witness rule, the court must allow the testimony. Refusing to admit the testimony, solely on the ground that it would violate the advocate-witness rule, is prejudicial error. Rubin (syllabus one) and 31 Ohio St.3d at 258-59, 510 N.E.2d at 381-82. There would appear to be no reason why these results would not continue to be the law under Rule 3.7 as well.
In subsequent decisions, lower courts struggled with how to implement the Supreme Court's mandate in Mentor Lagoons v. Rubin. The most extensive discussion is contained in the court of appeals' decision in Mentor Lagoons, Inc. v. Teague, 71 Ohio App.3d 719, 595 N.E.2d 392 (Lake 1991).
In Teague, the appellate court held that a trial court must hold a hearing to determine the questions the Court declared in Rubin to be relevant when an advocate-witness issue arises. Accord Williams v. White, 2002 Ohio 2120; 2002 Ohio App. LEXIS 2087 (Portage Apr. 30, 2002) (hearing required on motion to disqualify counsel pursuant to former OH DR 5-102(B)); Ross v. Ross, 94 Ohio App.3d 123, 130, 640 N.E.2d 265, 270 (Cuyahoga 1994) ("[I]t is a reversible error for the trial court to summarily disqualify an attorney solely on a paper allegation without a hearing."). Contra Univ. Carnegie Med. Partners Ass'n v. Weiss & Kramer, Inc., No. 65422, 1994 Ohio App. LEXIS 2690, at *4 (Cuyahoga June 23, 1994) ("[A] trial court is not required to hold a hearing on a motion to disqualify [on advocate-witness grounds]."). After reviewing the Ross and Carnegie medical decisions, the court in Hall v. Tucker, 169 Ohio App.3d 520, 2006 Ohio 5895, 863 N.E.2d 1064 (Jackson), concluded that on a motion to disqualify the trial court "must conduct some form of hearing," either oral or on paper, if sufficient evidence can be submitted by the latter route. Id. at paras. 23-24. (Another case cited by the Hall court, Landzberg v. 10630 Berea Rd., Inc., No. 79574, 2002 Ohio App. LEXIS 1085 (Cuyahoga Mar. 14, 2002), misreads the Carnegie Medical opinion on the hearing point.)
Following the hearing point, the Teague court gets into the byzantine differences arising under former OH DR 5-102 as to whether the testimony is on behalf of the client or the opposing party. Suffice it to say for present purposes that testimony on behalf of the client "creates a rebuttable presumption against employment . . . . [T]his situation is inherently different from that under DR 5-102(B) [called to testify by the opposing party], in which the presumption is in favor of continuing employment." 71 Ohio App.3d 719, 724, 595 N.E.2d 392, 395. (It is our belief that this distinction has been abolished by the Rules, since the former disciplinary-rule language on which it was based has been eliminated. If a rebuttable presumption survives at all, it is one against acting "as an advocate at a trial in which the lawyer is likely to be a necessary witness," subject to the Rule 3.7(a)(1)-(3) exceptions. Of course, it must be remembered that, presumption or not, there is now no imputation to other lawyers in the firm, even if the advocate is likely to be called as a necessary witness. Rule 3.7(b); see section 3.7:300.)
Given the substantial disruption that granting a motion to disqualify may cause a party, opposing litigants may be tempted to raise such motions as a mere litigation tactic. A court considering a disqualification motion should be sensitive to these concerns, particularly where disqualification is based on opposing counsel's attempt to call the lawyer. In such circumstances, the Supreme Court has suggested that caution in invoking the advocate-witness rule is appropriate:
This case does not deal with the issue of an attorney's testimony against his or her client (DR 5-102[B]). Courts will closely scrutinize this situation because an adverse party may try to call an opposing lawyer as a witness simply to disqualify that lawyer, thus creating an unfair tactical advantage, or to harass opposing counsel.
155 North High, Ltd. v. Cincinnati Ins. Co., 72 Ohio St.3d 423, 426 n. 2, 650 N.E.2d 869, 871 n.2 (1995). See Baker v. BP Am., Inc., 768 F.Supp. 208, 213 (N.D. Ohio 1991) (in relying on OHCPR to disqualify attorney under advocate-witness rule, court stated: "This Court recognizes that motions to disqualify counsel should be considered with extreme caution, in view of the litigant's interest in retaining counsel of the litigant's choice, and the danger that the opposing party might use a motion to disqualify to achieve tactical advantage"). As the Eighth District Court of Appeals stated in the advocate-witness context:
We cannot overemphasize the fact that in addition to considering the elements of DR 5-102 and the exceptions in DR 5-101(B)(1) through (4) in a disqualification hearing, trial courts have an obligation to the judicial system to stop any attempt by counsel to use the motion to disqualify as a trial tactic to delay proceedings, deprive the opposing party of counsel of his choice, or as a tool to harass, embarrass, and frustrate the opponent.
Ross v. Ross, 94 Ohio App.3d 123, 132, 640 N.E.2d 265, 271 (Cuyahoga 1994). See generally ABA, Annotated Model Rules of Professional Conduct 363-64 (6th ed. 2007) (commentary) (discussing tactical abuse of disqualification motions).
If counsel needs to withdraw because he or she will be called as a witness, time usually should be given for the client to obtain new counsel. However, where the need to secure new counsel has been evident for some time but the client has failed to act, it is not error to proceed with scheduled hearings, rather than granting a continuance, particularly if the client's interests parallel those of others in the proceeding who are represented by counsel. De Capite v. Cotton's Garage, Inc., Nos. 45949, 45969, 1983 Ohio App. LEXIS 14740 (Cuyahoga July 21, 1983).
The law under the former disciplinary rules: Although Rule 3.7 has adopted the Model Rule approach and has jettisoned the arcane distinctions in the Code regarding commencing and continuing employment, and whether the testimony would be on behalf of or other than on behalf of the client, and, if the latter, whether the testimony is prejudicial to the client (see former DR 5-101(B) and 5-102), the fact remains that the Code provisions will continue to be applicable to all cases involving conduct occurring prior to February 1, 2007, the effective date of the Rules. See Form of Citation, Effective Date, Application (b). Because of this, and because the former rules differ so significantly from Rule 3.7, we have retained the discussion of the law under the former disciplinary rules, at least for the time being. That discussion follows.
Former advocate-witness rule's prohibitions - Accepting employment in contemplated or pending litigation: While the basic concerns underlying the advocate-witness problem remain the same under both regimes, the former disciplinary rule drew a distinction between accepting employment and continuing employment already begun.
Under former DR 5-101(B), a lawyer could not accept employment in contemplated or pending litigation if the lawyer "knows or it is obvious" that the lawyer or a lawyer in the firm ought to be called as a witness, irrespective of by whom. The rule then articulated four exceptions to that general rule; they are discussed later in this section.
The 5-101(B) prohibition arose at this stage only if the lawyer knew or it was obvious that a lawyer in the firm "ought to be called as a witness." The mere possibility that one may be called as a witness was not enough. On the other hand, the test did not require that a lawyer in the firm in fact be called as a witness, only that one ought to be called. See Gantzos v. Jefferson Ins. Co., No. L-85-078, 1985 Ohio App. LEXIS 8691 (Lucas Sept. 6, 1985). As the Supreme Court stated in Disciplinary Counsel v. McNamee, 119 Ohio St.3d 269, 2008 Ohio 3883, 893 N.E.2d 490, in sanctioning respondent for violation of, inter alia, DR 5-101(B), respondent continued to represent all sides in a matter when it went to arbitration “despite the likelihood that he would be called as a witness.” Id. at para. 32. In Ohio State Bar Ass'n Formal Op. 33, at 5 (Dec. 12, 1980), the OSBA articulated the following formulation:
A lawyer "ought to be a witness in the cause" if he has been or expects to be called by the adverse party, or if he and his client have determined that he should testify on behalf of his client. The mere fact that he could testify should not, of itself, require the lawyer to withdraw as trial counsel.
In assessing whether a lawyer "ought to be called as a witness," the court could consider whether the lawyer's testimony is merely cumulative and could be presented through another witness. Schropshire v. City of Englewood, 92 Ohio App.3d 168, 634 N.E.2d 657 (Montgomery 1993). See Envtl. Network Corp. v. TNT Rubbish Disposal, Inc., 141 Ohio App.3d 377, 751 N.E.2d 502 (Cuyahoga 2001). In contrast, where the testimony of the lawyer was central to the controversy, the lawyer "ought" to be called. To the extent that the lawyer would testify on behalf of the client, the rule applied the same "ought" standard, regardless of whether the issue arose pre-retention (5-101(B)) or post-retention (5-102(A)). As a consequence, illustrative cases and bar opinions under the OHCPR are cited here without regard to whether the advocate-witness issue arose in the pre-employment or the post-retention context. For example:
A lawyer who drafted a will that was subject to a will contest, could not represent the beneficiaries of the instrument, because the lawyer ought to be called as a witness. Cleveland Bar Ass'n Op. 133 (July 29, 1977). See generally Toledo Bar Ass'n Op. 92-1 (Jan. 17, 1992).
Where an insurance company was being sued for bad-faith denial of coverage, and the insurance company's trial counsel played an integral part in the original denial of coverage and had exclusive knowledge about portions of the decision, that lawyer ought to be called as a witness. Gantzos v. Jefferson Ins. Co., No. L-85-078, 1985 Ohio App. LEXIS 8691 (Lucas Sept. 6, 1985).
A lawyer directly involved in securing an insurance recovery for a client ought to be called as a witness in a subsequent action against the insurer for bad-faith and intentional mishandling of the insurance claim, where the lawyer had first-hand knowledge of conversations and negotiations, and the insurer disputes or has forgotten the facts. 155 North High, Ltd. v. Cincinnati Ins. Co., 72 Ohio St.3d 423, 650 N.E.2d 869 (1995). See also Baker v. BP Am., Inc., 768 F. Supp. 208 (N.D. Ohio 1991) (relying on OHCPR to disqualify plaintiff's counsel from securities-fraud and breach-of-contract action where attorney played active role in negotiations and other events underlying claims and defenses).
A lawyer who served both as a police officer and as an assistant county prosecutor could not prosecute any case in which he ought to be called to testify as a witness stemming from his police duties. Bd. of Comm'rs on Grievances & Discipline Op. 89-23, 1989 Ohio Griev. Discip. LEXIS 29 (Aug. 18, 1989).
Acting as a chief negotiator for a party in collective-bargaining negotiations that subsequently become the subject of an unfair-labor-practice proceeding could place the lawyer in a situation where he ought to be called as a witness in the unfair-labor-practice proceeding, thus making representation in that proceeding improper. In re City of Cleveland, SERB 94-021 (Oct. 26, 1994), aff'd, State Employment Relations Bd. v. City of Cleveland, 106 Ohio App.3d 128, 665 N.E.2d 693 (Cuyahoga 1995); In re Springfield Local Sch. Dist. Bd. of Educ., SERB 94-020 (Oct. 26, 1994), aff'd, State Employment Relations Bd. v. Springfield Local Sch. Dist. Bd. of Educ., 104 Ohio App.3d 191, 661 N.E.2d 278 (Summit 1995).
A lawyer who was intimately involved in a real-estate transaction that subsequently became the subject of litigation was sanctioned for acting as counsel in the matter when it was obvious he should be called as a witness (even though he did not in fact testify). Office of Disciplinary Counsel v. Collins, 71 Ohio St.3d 310, 643 N.E.2d 1082 (1994).
Where a lawyer served as a guardian for a person judged mentally incompetent and subsequently opposed termination of the guardianship, the lawyer would be a witness and hence could not represent the person or the underlying estate in the matter. Brown v. Haffey, 96 Ohio App.3d 724, 645 N.E.2d 1295 (Cuyahoga 1994) (treating this as an OH DR 5-102(A) situation).
Former advocate-witness rule's prohibitions - Continuing employment in contemplated or pending litigation - In general: Particularly in complex matters, the need for the lawyer's testimony might not be apparent at the inception of the employment such that acceptance of the employment would be barred under former DR 5-101(B). Rather, only as the case unfolded did the likelihood of the lawyer's testifying become apparent. Former DR 5-102(A) and (B) addressed the circumstances under which counsel had to withdraw after accepting employment in contemplated or pending litigation. Unlike 5-101(B), these provisions differentiated between the lawyer serving as a witness on behalf of the client (5-102(A)) and the lawyer called to testify other than on behalf of the client (5-102(B)).
Former advocate-witness rule's prohibitions - Continuing employment in contemplated or pending litigation - Lawyer as witness for the client: Where the lawyer's testimony would be on the client's behalf, the restriction on continuing as counsel, for the most part, mirrored the language of the pre-employment prohibition. Once the lawyer learned, or it became obvious, that a lawyer in the firm "ought to be called as a witness on behalf of the client" the lawyer and the firm had to withdraw from representation of the client in the trial, unless one of the four exceptions recognized in DR 5-101(B) was met. (Where the lawyer informed the court that he would not testify on behalf of the client, the rule was inapplicable. Vinci v. Ceraolo, 79 Ohio App.3d 640, 607 N.E.2d 1079 (Cuyahoga 1992) (applying former OH DR 5-102(A)).
The language in DR 5-102(A) varied somewhat from the language regarding the pre-employment situation, but the import of the differences is not clear. First, 5-102(A) required withdrawal when the lawyer "learns" or it was obvious that he or a lawyer in his firm ought to testify. Pre-employment, DR 5-101(B) required the lawyer to decline employment where he or she "knows" or it was obvious that a lawyer in the firm ought to be called as a witness. Second, 5-102(A) dealt only with the situation where the lawyer ought to be called as a witness for the client and left to DR 5-102(B), and a different standard, the situation in which the lawyer will be called to testify for another party. The pre-employment standard in DR 5-101(B) made no distinction as to on whose behalf the lawyer would testify. Third, 5-102(A) provided that if the advocate-witness problem arises, the lawyer involved must "withdraw from the conduct of the trial" and "his or her firm, if any, shall not continue representation in the trial." The pre-employment standard used the broader term "litigation" to describe the area in which the lawyer and lawyers in her firm could not work. At least one Ohio court read the term "trial" in former OH DR 5-102(A) to encompass all stages of the litigation. Libbey-Owens-Ford Co. v. Martin, No. 96 APE02-215, 1996 Ohio App. LEXIS 3930 (Franklin Sept. 12, 1996).
Former advocate-witness rule's prohibitions - Continuing employment in contemplated or pending litigation - Lawyer testimony not on behalf of the client: Post-retention, a different standard applied if the lawyer was to be called to testify other than on behalf of the lawyer's client. DR 5-102(B). The mere fact that a lawyer learned, or it was obvious, that a lawyer in the firm might be called as a witness under these circumstances did not necessitate withdrawal. Rather, the lawyer could remain in the litigation until it was "apparent" that the testimony "is or may be prejudicial to the client." See Rivera v. Lake Terminal R.R., 132 Ohio App.3d 483, 725 N.E.2d 676 (Lorain 1999) (highlighting the distinctions between former OH DR 5-102(A) and (B); rejecting argument that DR 5-102 obligated defense attorneys to withdraw; even if court had allowed plaintiff to call one of the defense attorneys, nothing in record to indicate that her testimony would have been prejudicial to defendant). DR 5-102(B) sought to maximize the client's choice of counsel and minimize the ability of an opponent to abrogate that choice simply by calling the lawyer to testify. Only when it became apparent that the testimony might be harmful to the lawyer's client was there a conflict of sufficient magnitude to require disqualification or withdrawal. E.g., Crockett v. Crockett, No. 02AP-482, 2003 Ohio App. LEXIS 567 (Franklin) (questioning of counsel at disqualification hearing made clear that any testimony he might give would not be prejudicial to his client; denial of motion for disqualification affirmed); Frailey v. Frailey, No. 99 CA 78, 1999 Ohio App. LEXIS 6379 (Licking) (insufficient showing that lawyer’s continued representation was prejudicial to client; disqualification reversed). Other Code cases to this effect include Hall v. Tucker, 169 Ohio App.3d 520, 2006 Ohio 5895, 863 N.E.2d 1064 (Jackson) (trial court abused discretion in disqualifying lawyers where record contains "no evidence from which the court could determine whether their testimony would prejudice their client such that the presumption of continued representation contained in DR 5-102(B) should not apply," id. at para. 19); Waliszewski v. Caravona Builders, Inc., 127 Ohio App.3d 427, 713 N.E.2d. 65 (Summit 1998) (magistrate erred in ordering disqualification without a showing that the lawyer's testimony is or might be prejudicial to the client); Vinci v. Ceraolo, 79 Ohio App.3d 640, 607 N.E.2d 1079 (Cuyahoga 1992) (affirming trial court's denial of motion for disqualification because "nothing has been presented in the record that indicates that [the lawyer's] testimony would be prejudicial to his clients." Id. at 648, 607 N.E.2d at 1084); Reamsnyder v. Jaskolski, No. L-84-447, 1985 Ohio App. LEXIS 8533 (Lucas Aug. 23, 1985) (lawyer testimony that may contradict client, but did not substantially affect case, did not implicate OH DR 5-102(B)). When the issue arose on a motion for disqualification, the burden was on the movant to demonstrate that the testimony of the attorney would be prejudicial to the attorney's client and that disqualification was necessary. Waliszewski supra. If the requisite prejudicial effect is shown, disqualification is appropriate. See Hamrick v. Union Township, 81 F. Supp.2d 876, 880 (S.D. Ohio 2000) (disqualification ordered where "good possibility" that plaintiffs' lawyer would be called by defense and that some of his testimony would be detrimental to plaintiffs).
Two lawyer/witness disqualification cases decided under former DR 5-102 raise more questions than they answer. Morrison v. Gugle, 142 Ohio App.3d 244, 755 N.E.2d 404 (Franklin 2001), was a fight between twin sisters, who had been the two equal owners of the stock in a closely-held corporation running a consignment store. Shortly after the business began, one of the sisters, Gugle, accused the other of embezzling from the corporation and ultimately ousted the other sister. The ousted sister sued for wrongful termination and defamation and, in an amended complaint, added Gugle's lawyer as a defendant. (The lawyer, Vasko, may have been representing the corporation in addition to Gugle, but the opinion is unclear on this point.) At the ensuing trial, Vasko testified, but the court does not state whether he was called by the plaintiff, by Gugle, or by himself in his capacity as a party defendant. In any event, one of plaintiff's assignments of error on appeal was that the trial court abused its discretion in failing to disqualify Vasko as Gugle's attorney (even though plaintiff had never requested that Vasko be disqualified). While the court of appeals included the Mentor Lagoons v. Rubin test under OH DR 5-102(A) in its discussion, the touchstone for the court seemed to be the question whether Vasko's testimony would prejudice his client, Gugle — an inquiry that is relevant under OH DR 5-102(B), but not 5-102(A). Thus, after quoting the Rubin rule, the court states:
Despite the foregoing [Rubin test], the trial court did not inquire about the potential prejudice to Gugle, but only asked Gugle whether she wanted Vasko to continue to represent her. Given the parameters set forth in Jackson [Jackson v. Bellomy, 105 Ohio App.3d 341, 663 N.E.2d 1328 (Franklin 1995)], the trial court erred in failing to explore the potential for prejudice more fully . . . . . Moreover, had the trial court conducted the inquiry called for in Jackson and Mentor Lagoons, disqualification may have been necessary: "Where there is shown to be prejudice to a client in a given matter occasioned by the unprofessional activity of the client's legal counsel, it is not only the province, but the duty, of the trial court to take such action as necessary to abate the source of the prejudice [citing Jackson, 105 Ohio App.3d at 348, 663 N.E.2d at 1333]." Accordingly, plaintiff's first assignment of error is sustained.
142 Ohio App.3d at 254, 755 N.E.2d at 411-12 (bracketed material and ellipsis added).
This analysis seems to mix apples and oranges. The Jackson court had analyzed the case before it under OH DR 5-102(B) because the evidence showed that the lawyer there was not going to testify on behalf of his client — thus the only remaining issue was whether, if called by the other side, his testimony would be prejudicial to his client. But in Morrison, we don't know who called Vasko to the stand. Presumably he could testify if he, as a party, called himself, but this is never made clear. As between Morrison, the plaintiff sister, and Gugle, the client, it seems more likely that Vasko would have testified on behalf of his client, thus bringing into play the multi-step analysis under OH DR 5-102(A), rather than the prejudice inquiry under OH DR 5-102(B). But, as previously noted, the opinion does not enlighten us on this point. As a result, the Morrison opinion is something of a conundrum.
The second case is Amos v. Cohen, 156 Ohio App.3d 492, 2004 Ohio 1265, 806 N.E.2d 1014 (Hamilton). In Amos, plaintiff sued her former lawyer, Cohen, for malpractice. She asserted that the trial court committed error in disqualifying her counsel, Damon, "after Cohen proposed to call him as a fact witness at trial. Id. at ¶ 1. The court of appeals affirmed, holding that the "trial court's written decision correctly applied DR 5-102(A)." Id. The appellate court, finding that the trial judge had applied the two-step Mentor Lagoons v. Rubin test, concluded, first, that the testimony of Damon was admissible and, second, "that Damon's testimony might potentially have been prejudicial to Amos on the issues of liability and damages and that 'none of the exceptions in DR 5-101(B) apply.'" Id. at ¶ 10. Once again, the prejudice test of OH DR 5-102(B) was invoked, even though both courts purported to be proceeding under OH DR 5-102(A). Id. at ¶¶ 1, 6, 11. (The 5-102(B) test – that counsel can remain until it is "apparent" that the lawyer's testimony "is or may be" prejudicial – was diluted into one in which Damon's testimony "might potentially" have been prejudicial to Amos.)
The Amos v. Cohen analysis is further confounded by the court of appeals' apparent ambivilance about whether Damon's testimony would be prejudicial or beneficial to his client, or both. At one point the court states that Damon's "testimony on behalf of Amos [even though he was to be called by the defendant, Cohen], as Cohen argues, was necessary to prove her claim with respect to liability and damages." Id. at ¶ 14. But in the same paragraph, the court stated:
These facts [those "necessary to prove Amos's malpractice claim"] were known only to Damon and were not within the direct knowledge of either Amos or another source. His testimony, as the trial court correctly held, was, therefore, admissible and could have been prejudicial to his client's claim if Damon had to defend his own handling of her case.
Id. (bracketed material and emphasis added). But would not Damon's defense of "his own handling of her case" (the prior personal injury action underlying the malpractice claim and in which Damon replaced Cohen) tend to cut in his (and his client's) favor and against Cohen? In any event, how can such an analysis possibly comport with the rule that the burden of proof is imposed on the movent for disqualification to show "apparent" prejudice? The issues raised by the Amos case would seem to have called for Supreme Court review but none was sought.
- Primary Ohio References: Ohio Rule 3.7(b)
- Background References: ABA Model Rule 3.7(b)
- Commentary: ABA/BNA § 61:510; ALI-LGI § 108; Wolfram § 7.5
Ohio Rule 3.7(b), like MR 3.7(b) and in direct contrast to former DR 5-101(B) and 5-102, does not automatically impute the advocate-witness prohibition to other members of the testifying lawyer's firm. It provides as follows:
A lawyer may act as an 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 1.9.
Comment  further states that if "the testifying lawyer also would be disqualified by Rule 1.7 or 1.9 from representing the client in the matter, other lawyers in the firm will be precluded from doing so by Rule 1.10, unless the client gives informed consent under the conditions stated in Rule 1.7." Ohio Rule 3.7 cmt. .
As noted above, pre-February 1, 2007 conduct will continue to be governed by the OHCPR, pursuant to which the advocate-witness prohibition is imputed to other members of the testifying lawyer's firm. See, e.g., Landsberg v. 10630 Berea Rd., Inc., 2002 Ohio 1086, 2002 Ohio App. LEXIS 1085 (Cuyahoga Mar. 14, 2002).
- Primary Ohio References: Ohio Rule 3.7(c)
- Background References: None
Ohio Rule 3.7(c), a provision found in neither the Model Rule nor the OHCPR, states:
A government lawyer participating in a case shall not testify or offer the testimony of another lawyer in the same government agency, except where division (a) applies or where permitted by law.
Comment  adds that "the ethical reasons for restrictions in serving as an advocate and a witness apply with equal force to lawyers in government offices and lawyers in private practice." The comment goes on, however, to say that "[d]ivision (c) reflects the difference between the relationships among salaried lawyers working in government agencies and relationships between law firm lawyers where financial ties among the partners and associates in the firm are intertwined." This "difference" is not further explained, either in the comment or in the Task Force Model Code Comparison to Rule 3.7. Division (c) seems counterintuitive in any event. Wouldn't the "difference" in relationships, if anything, point to a more lenient application of the advocate-witness rule for governmental lawyers? Division (c) does just the opposite – the nonimputation rule among law-firm lawyers does not apply; instead, the general rule is imputation, unless the division (a) exceptions apply or where "permitted . . . by common law" (presumably a reference to the Coleman rule). Ohio Rule 3.7 cmt. . This approach also appears to be out of step with the law generally; see ABA, Annotated Model Rules of Professional Conduct 367 (6th ed. 2007) (commentary), which states that "[w]hen the result would be to bar an entire government office from prosecuting cases, courts are even more reluctant to impute the disqualification of a lawyer-witness to other lawyers in the office," citing cases.
One final footnote: In the Model Rule Comparison to Rule 3.7, the Task Force purports to quote from State v. Coleman, 45 Ohio St.3d 298, 544 N.E.2d 622 (1989), to the effect that while generally to be avoided, the testimony of a prosecutor may be permitted in extraordinary circumstances. Lest the reader, like some of us, be confused by the quote (which omits a rather important word), the actual language of Coleman is that "a prosecuting attorney should avoid being a witness in a criminal prosecution, but where it is a complex proceeding [etc.]," he or she may do so. Id. at 302, 544 N.E.2d at 628.