Legal Ethics

Quandaries & Quagmires: Attorney as witness: 3 erroneous court orders

By William Wernz posted 12-14-2020 09:05

  

[Originally published in Minnesota Lawyer, December 8, 2020] ]

What arrangements should a trial lawyer make for note-taking when interviewing a potential key witness? What consequences will the lawyer face for not making the best arrangements? Surprisingly, the Office of Lawyers Responsibility (OLPR), the Minnesota Supreme Court, and the Hennepin County District Court have recently given four answers to these questions, three of which are wrong.

Rule 3.7(a), R. Prof. Conduct, creates the main framework for structuring proper arrangements. The Rule provides, “A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless: . …” A lawyer who interviews an important witness without a second person to take notes might make it “likely” that the lawyer will “be a necessary witness” at trial. The witness interview might indicate that the witness has important testimony. The witness might thereafter become unavailable or might change stories, so that only the lawyer is available to testify as to the original story. The lawyer would then be a “necessary witness” and could not “act as advocate at a trial” of the matter.

Who should take interview notes? The answer depends on an understanding and on circumstances. The understanding is that if a person other than the lawyer-interviewer takes notes, the availability of the note-taker to testify at trial means that the lawyer will not be a “necessary witness” at trial. Case law, discussed below, supports the understanding.

In some circumstances, the lawyer-interviewer could take notes. The case budget might be too small to pay two people to attend the interview. The witness and the expected testimony might be so well known that the lawyer’s risk of becoming a witness might be small. The risk of disqualification is smaller for law firms with more than one trial attorney because even if the lawyer-interviewer becomes a witness, Rule 3.7(b) permits another lawyer in the firm to act as advocate at trial, so long as the testimony of the lawyer-witness is not adverse to the client’s interests. In some circumstances, recording the interview might serve the client’s purposes.

With this Rule 3.7 framework in mind, four Rule 3.7 rulings, in two recent criminal cases, may be examined. Only one ruling is correct.

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In the first case, T.N. faced felony charges of illegal possession of drugs and a gun. Mulligan represented T.N. Mulligan understood that T.N.’s wife might testify that she was the actual possessor of the drugs and gun. Mulligan interviewed Ms. T.N., without a note-taker.

In December 2019, OLPR filed a discipline petition against Mulligan, alleging violations of numerous rules, including Rule 3.7(a). Mulligan admitted all allegations and joined with OLPR in recommending a suspension. The Minnesota Supreme Court accepted the stipulation, found a Rule 3.7 violation, and ordered a suspension.

For students of Rule 3.7, several questions jumped off the page. “What did Ms. T.N. say to Mulligan?” “Did Mulligan become a necessary witness?” “Did Mulligan act as advocate at trial while being a necessary witness?” Because the discipline petition did not plead answers to these questions, it did not plead the factual predicates for a Rule 3.7 violation.

The author wrote to OLPR, pointing out these deficiencies.1 To its credit, OLPR moved the Court to withdraw its discipline order and substitute a corrected order, without a finding of a Rule 3.7 violation. In February 2020, the Court granted the motion.2

The second case with Rule 3.7 issues is State v. Chauvin et al. In August 2020, Chauvin’s attorney filed a motion to disqualify four Hennepin County Attorneys “from prosecuting or participating in the prosecution of this matter.” The motion argued, “Mr. Freeman and several of his assistant attorneys are potential witnesses due to their interviews of Hennepin County Medical Examiner Dr. Andrew Baker regarding his autopsy of George Floyd without a having non-attorney witness present.” Chauvin’s attorney also asserted, “At least one attorney has been disciplined, in part, for this same conduct. See In re Mulligan.” However, the Supreme Court vacated the order disciplining Mulligan for a Rule 3.7 violation months before this citation.

On Sept. 11, 2020, the District Court ordered disqualification of the four Hennepin County Attorneys, both from trial and pre-trial participation in the Floyd cases.3 The Court found that the attorneys’ failure to have a non-attorney note-taker was “sloppy” and in violation of Rule 3.7. In support of a motion for reconsideration, the County Attorney submitted its own brief and an affidavit from the author.4 The affidavit described the history of the Mulligan case and exhibited relevant documents.

On Nov. 4, 2020, the District Court acknowledged its error in ordering pre-trial disqualification and vacated its Sept. 11 order. However, the substitute order disqualified the county attorneys at trial. Because the attorneys had previously represented that they did not intend to appear at trial, the new order has no direct effect and it has not been appealed.

The court’s rationale for disqualification at trial is, however, important and clearly erroneous.

It appears that the court took no account of the correction of the first Mulligan order by OLPR and the Supreme Court.5

The Nov. 4 order explained trial disqualification: “In [interviewing the Medical Examiner], the attorneys made themselves potential witnesses in the case. While it is unlikely that Dr. Baker’s testimony would be impeached, it remains a possibility that the attorneys could be called as witnesses to impeach his testimony. Accordingly, they cannot act as advocates in this case at trial. Minn. R. Prof. Conduct 3.7(a); State v. Fratzke, 325 N.W.2d 10, 11-12 (Minn. 1982).” This explanation is based on two errors of law.

First, Rule 3.7(a) applies only to an attorney who is “likely” to be a necessary witness. The order’s findings of “potential,” and “a possibility,” and – especially – the finding of “unlikely” do not meet the “likely” standard. It is, frankly, bewildering that a corrective order would make a finding that the county attorneys’ testimony is “unlikely,” but find application of Rule 3.7(a), whose essential elements include a finding that the testimony is “likely.”

Second, the Nov. 4 order offers no explanation as to why all four attorneys would be “necessary” witnesses under Rule 3.7(a) and applicable case law. The holding of Fratzke – the only Rule 3.7 case cited in the order – is in direct opposition to the order. Fratzke held, “[W]e believe that the trial court erred in holding that defendant had established the necessity of removing the county attorney and his assistants as prosecutors. In fact, it appears that the county attorney will not likely be a necessary witness and that his testimony at best may be cumulative, there being at least two other people (one a BCA agent, the other an assistant prosecutor) who witnessed the entire interrogation of Lucking.”6

The Nov. 4 order also included a critique of the County Attorney, based on the court’s understanding of best practices. The order substituted “careless” for “sloppy,” as a critique of the attorneys’ using an attorney, rather than a non-attorney, to take notes. If the note- taker is not intended to be a trial attorney, however, there is no evident basis for this critique. The rule that a cumulative attorney-witness is not a “necessary” witness applies regardless of whether the note-taker is an attorney or not. Multiple attorneys in a public office are not “necessary witnesses” and are not disqualified where their testimony is cumulative to that of an attorney-witness.7 For purposes of applying Rule 3.7, it does not matter whether the note-taker is an attorney or non-attorney.

Possibly, the District Court was relying on an understanding of best practices based on the version of Rule 3.7 that was in effect until 1987. The pre-1987 rule provided that if one lawyer was disqualified by reason of likely being a necessary witness, all lawyers in the firm were disqualified. For those schooled in best practices before 1987, a non-attorney note-taker may appear to be the careful choice. However, the 1987 amendment added Rule 3.7(b), “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 Rule 1.9.”8 The author once tried a five-day jury trial in which the author’s partner was a material witness, all without objection or problem of any sort. Perhaps the court believes purported “carelessness” in such practices arises only in criminal prosecutions, but the basis for the critique is not evident. In any event, the court relied, erroneously, on Rule 3.7 and Fratzke for its order disqualifying the attorneys at trial.

Endnotes

  1. Other attorneys also noticed the Rule 3.7 error. The petition and order contained a second error, viz. that Mulligan violated Rule 4.3(d) by not advising Ms. T.N. to obtain counsel. However, Rule 4.3(d) provides only that a lawyer may render such advice and does not provide that a lawyer shall render such advice. For further discussion of the Mulligan case, see communities at my.mnbar.org blog, William J. Wernz, To Err is Human. What Next? (June 26, 2020).
  2. In re Mulligan, 938 N.W.2d 808 (Minn. 2020) (Mem.).
  3. OLPR has repeatedly made clear that Rule 3.7 provides no basis for disqualifying a lawyer from pre-trial activities. Martin A. Cole, Three Rules of Professional Conduct, Bench & B. of , July 2011; Martin A. Cole, Lawyer-As-Witness Rule Often Misunderstood, Minn. Law., Sept. 6, 1999.
  4. The author did not charge a fee for his services and did not represent a client in In re Mulligan or State v. Chauvin. The author’s only interest in these matters has been to promote correct applications of ethics law.
  5. Discipline orders entered pursuant to stipulation are not binding precedent, but when OLPR and the Court agree that a prior application of a rule is erroneous, there appears to be at least persuasive authority against repeating the prior application.
  6. State v. Fratzke, 325 N.W.2d 10, 11-12 (Minn. 1982).
  7. Humphrey ex rel. State v. McLaren, 402 N.W.2d 535, 543 (Minn. 1987).
  8. The preclusion of all lawyers in the firm arises when the testimony of the lawyer-witness is adverse to the interests of the firm’s client.
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