A party’s choice to hire an attorney of their own choosing is perhaps one of the most important liberties in our system of jurisprudence.  However, the legal bar of each state imposes certain restrictions and limitations on the practice of law which are designed to avoid conflicts of interest. In New Jersey, attorneys are governed by the Rules of Professional Conduct (“RPC”). Can an attorney represent a client in a lawsuit if the attorney is also a witness possessing first hand knowledge of disputes that are central to the lawsuit?

RPC 3.7 incorporates the attorney witness rule which states as follows:

A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:

(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)disqualification of the lawyer would work substantial hardship on the client.

There can be many strategic reasons to seek disqualification of an attorney under RPC 3.7.  Perhaps the attorney is a family friend or relative who is not charging a fee, or is charging a reduced fee.   In such a scenario, the litigant paying no legal fees or paying a reduced fee would gain an unfair advantage. Because courts generally are reluctant to disqualify a party’s choice of counsel, a motion brought pursuant to RPC 3.7 requires the moving party to bear the burden of proof by demonstrating that the attorney’s continued representation would violate the Rule. J.G. Ries & Sons, Inc. v. Spectraserv, Inc.,384 N.J. Super. 216 (App. Div. 2006).

I recently discussed this issue at length in a separate blog post published on my website. Click here to read the full article.