In every state, the professional rules of conduct contain a prohibition on an attorney acting as both an advocate for their client and a witness in the same trial. The "lawyer as witness" rule has, however, been inconsistently applied in administrative adjudications. This article analyzes the split of authority in the use of this rule and proposes a solution as how the issue should be resolved.
Ample support for applying the lawyer as witness rule to administrative adjudications may be found in administrative decisions, judicial opinions and state bar association ethics committee opinions. There is, however, conflicting authority that rejects application of the rule to administrative adjudications, based on the language of the rule and the differences between judicial trials and administrative proceedings.
This article finds that the policy reasons supporting the lawyer as witness rule in judicial proceedings also justify its use in administrative adjudications. Accounting for the inherent differences between the two fora, however, this article proposes a slightly varied version of the rule in the administrative field. Rather than contain a "substantial hardship" exception, as states following the ABA formulations currently impose, a more flexible exception to the rule would better suit the administrative process. This article proposes that a showing of "some hardship" would be a more suitable exception, unless the party opposing the testimony can prove prejudice. Furthermore, if the ALJ found disqualification of the attorney necessary, this proposed rule would allow for other members of the disqualified attorney's law firm to represent the client and permit the disqualified attorney to remain counsel of record and participate in pre- and post-hearing matters.
Adoption of the proposed rule may be accomplished in one of two ways. Either those responsible for the rules of professional conduct in each state and the ABA may be petitioned, or adjudicating agencies can adopt the proposed rule in their rules of procedure. This article suggests that the latter means of adoption could be more easily done due to each agency's power to adopt procedural regulations. In addition, agency adoption would allow for the rule to be shaped in a way that addresses the differences amongst the agencies.
This article supports the use of the lawyer as witness rule in administrative adjudications. The proposed rule set forth, however, contains variations that would better suit the flexibility of administrative proceedings, as well as a proposed plan of adoption.
The Attorney as Advocate and Witness: Does the Prohibition of an Attorney Acting as Advocate and Witness at a Judicial Trial Also Apply in Administrative Adjudications, 26 J. Nat'l Ass'n Admin. L. Judiciary 1 (2006)