In Matthews v. Stolier, litigation arose regarding several transactions, including a power of attorney document. No. 13-6638, 2015 U.S. Dist. LEXIS 171752 (D.C. La. December 23, 2015). Some of the parties retained an attorney that assisted in drafting some of those documents. The opposing party filed a motion to disqualify that attorney due to her participation as a witness in the case. The trial court granted the motion based on Rule of Professional Conduct 3.7. That Rule provides that a lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless: (1) the testimony relates to an uncontested issue; (2) the testimony relates to the nature and value of legal services rendered in the case; or (3) disqualification of the lawyer would work substantial hardship on the client.
The court noted that this Rule serves two distinct purposes: protecting the client and protecting the integrity of the court proceeding. The Rule protects clients from a potential conflict of interest, which would occur when an attorney is forced to offer testimony that materially differs from the testimony offered by his client. Additionally, the Rule preserves the integrity of judicial proceedings. Courts have expressed concerns that the role of a witness is inherently different from that of an attorney. “When an attorney is placed in both positions, the Court runs the risk that a jury will assign too much, or possibly too little, weight to the lawyer’s testimony.”
The court held that the circumstances of the negotiations of the transactions would be key to proving several of plaintiffs’ claims, including their fraud, malpractice, and breach of fiduciary duty claims. As the attorney had unique personal knowledge of the circumstances of these negotiations based on her participation as counsel for plaintiffs, the court held that she would be a necessary witness. Finding no applicable exception, the court granted the motion to disqualify the attorney.
Interesting Note: The issue of an attorney acting as an advocate in a case where the attorney is also a witness frequently comes up in fiduciary litigation. Attorneys routinely testify about the wills, powers of attorney, trusts, etc. that they draft and also testify about the client’s mental competence and other facts involving those documents. In Texas, the starting point for a discussion of “Lawyer as Witness” is Texas Rule of Disciplinary Conduct Rule 3.08. provides in pertinent part: (a) A lawyer shall not accept or continue employment as an advocate before a tribunal in a pending adjudicatory proceeding if the lawyer knows or believes that the lawyer is or may be a witness necessary to establish an essential fact on behalf of the lawyer’s client, unless . . . (5) The lawyer has promptly notified opposing counsel that the lawyer expects to testify in the matter and disqualification of the lawyer would work substantial hardship on the client. Rule 3.08(b) prohibits a lawyer from continuing as an advocate if the lawyer believes that he/she will be compelled to give “substantially adverse” testimony (adverse to the lawyer’s client), unless the client consents after full disclosure. If a lawyer is barred from representing a client under either paragraph (a) or (b), Rule 3.08(c) extends the prohibition to other members of the lawyer’s firm unless the client gives informed consent. Rule 3.08 does not prohibit the testifying lawyer from participating in the preparation of the matter as long as the testifying lawyer takes no active role as an advocate before the tribunal. See Rule 3.08, cmt. 8. Generally, if the lawyer is also an advocate, he/she must step aside: a) if the lawyer knows or believes that the lawyer is or may be a witness; b) necessary to establish an essential fact on behalf of his or her client; c) unless prompt notification has been given to opposing side and disqualification would work a substantial hardship on the client; and d) in any event, the lawyer must first obtain the client’s informed consent before testifying.
David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the The Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary…
David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the The Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary field in Texas. Read More
David’s financial institution experience includes (but is not limited to): breach of contract, foreclosure litigation, lender liability, receivership and injunction remedies upon default, non-recourse and other real estate lending, class action, RICO actions, usury, various tort causes of action, breach of fiduciary duty claims, and preference and other related claims raised by receivers.
David also has experience in estate and trust disputes including will contests, mental competency issues, undue influence, trust modification/clarification, breach of fiduciary duty and related claims, and accountings. David’s recent trial experience includes:
David is one of twenty attorneys in the state (of the 84,000 licensed) that has the triple Board Certification in Civil Trial Law, Civil Appellate and Personal Injury Trial Law by the Texas Board of Legal Specialization.
Additionally, David is a member of the Civil Trial Law Commission of the Texas Board of Legal Specialization. This commission writes and grades the exam for new applicants for civil trial law certification.
David maintains an active appellate practice, which includes:
For example, David was the lead appellate lawyer in the Texas Supreme Court in In re Weekley Homes, LP, 295 S.W.3d 309 (Tex. 2009). The Court issued a ground-breaking opinion in favor of David’s client regarding the standards that a trial court should follow in ordering the production of computers in discovery.
David previously taught Appellate Advocacy at Texas Wesleyan University School of Law located in Fort Worth. David is licensed and has practiced in the U.S. Supreme Court; the Fifth, Seventh, and Eleventh Federal Circuits; the Federal District Courts for the Northern, Eastern, and Western Districts of Texas; the Texas Supreme Court and various Texas intermediate appellate courts. David also served as an adjunct professor at Baylor University Law School, where he taught products liability and portions of health law. He has authored many legal articles and spoken at numerous legal education courses on both trial and appellate issues. His articles have been cited as authority by the Texas Supreme Court (twice) and the Texas Courts of Appeals located in Waco, Texarkana, Beaumont, Tyler and Houston (Fourteenth District), and a federal district court in Pennsylvania. David’s articles also have been cited by McDonald and Carlson in their Texas Civil Practice treatise, William v. Dorsaneo in the Texas Litigation Guide, and various authors in the Baylor Law Review, St. Mary’s Law Journal, South Texas Law Review and Tennessee Law Review.
Representative Experience