Back to School on the Advocate-Witness Rule

Law360 reports that the DOJ has moved to disqualify Susman Godfrey as counsel for the ABA in its lawsuit seeking to enjoin the administration’s “law firm intimidation policy” (motion here). The cognitive dissonance must be almost unbearable for lawyers in an administration that complains incessantly about the weaponization of the legal system. This motion is straight-up abusive. It overlooks an obvious textual feature of the rule relied upon in the motion to disqualify – the non-imputation of disqualification for a lawyer who is a necessary witness. It talks throughout about “Susman,” as though conflicts under Rule 3.7 are imputed (or else thinking that Steve Susman himself is still alive and wreaking all this havoc on the administration – sadly, he is not). This isn’t just sloppy lawyering; it is so far from well-grounded that the inference is inevitable that it was brought for an improper purpose. The lawyers who signed this motion should be required to retake their law school Professional Responsibility class and sit for the MPRE again. Really, it’s that bad. It’s so bad that I think I can explain why in a short post, written on an airplane after not getting much sleep on an overnight flight.

Rule 3.7 is the advocate-witness rule. The D.C. version of the rule provides:

(a) 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; or
(3) Disqualification of the lawyer would work substantial hardship on the client.

(b) A lawyer may not act as advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as a witness if the other lawyer would be precluded from acting as advocate in the trial by Rule 1.7 or Rule 1.9.

The D.C. rule applies because the conduct in question is in connection with a matter pending before a tribunal in D.C. – see D.C. Rule 8.5(b)(1). None of the exceptions in Rule 3.7(a) applies, so there is a simple two-step analysis under the rule: (1) Personal disqualification of a lawyer who is likely to be a necessary witness from acting as an advocate at trial; (2) imputation of that lawyer’s disqualification to other lawyers in the same firm.

Oddly, though, the DOJ motion spends the first 2-3 pages of the argument section establishing that the rule applies to acting as an advocate in pretrial proceedings. If we’re being good textualists, we could observe that disqualification under the rule applies to “act[ing] as an advocate at a trial.” The primary rationale for the rule has always been understood as preventing the jury from being confused by a lawyer-witness acting in both roles. Is the lawyer giving testimony, as a witness, or making an argument about the evidence, as an advocate? Many courts, however, have extended the application of the rule to bench trials (even though judges are less likely to be confused by the dual roles of the lawyer) and pretrial litigation. That’s pp. 6-7 of the motion, and I don’t really have any problem with it, except that the rule really only applies to giving testimony while simultaneously serving as an advocate, which no one at Susman is trying to do right now; they’re just conducting discovery.

But the rest of the analysis is a joke. Start with step 1: Will a lawyer be a necessary witness to a matter that will be in dispute at trial? Here is what the DOJ says:

Here, Susman is an essential actor in this lawsuit. Susman was the subject of an Executive Order. As a plaintiff, Susman is presently litigating against Defendants before the D.C. Circuit on substantially the same conduct at issue in this case. The ABA, through its counsel Susman, has sought discovery from Defendants and at least one third party, including for communications with and about Susman. Susman has also noticed at least one deposition that it presumably plans to take. In parallel, Defendants have noticed Rule 45 subpoenas to third parties, including Susman, as well as more than a dozen depositions, including Susman’s managing partner. Susman is a witness and advocate at one and the same time.

Motion p. 8 (citations omitted). What are the issues on which a lawyer at the firm is likely to be a necessary witness at trial? Let’s review the complaint in the action, shall we? This litigation is all about Trump’s unconstitutional efforts to coerce, intimidate, and silence law firms who have the temerity to represent his political adversaries. Paragraph 4 of the complaint summarizes the claims in the lawsuit:

Since taking office earlier this year, President Trump has used the vast powers of the Executive Branch to coerce lawyers and law firms to abandon clients, causes, and policy positions the President does not like. The Administration has carried out this policy (the “Law Firm Intimidation Policy” or “Policy”) through a series of materially identical executive orders designed to severely damage particular law firms and intimidate other firms and lawyers (the “Law Firm Orders”); a series of similar “deals” or “settlements” between the Administration and certain law firms in order to avoid such Orders or have them rescinded; other related executive orders, letters, and memoranda described below; and public statements by the President and his Administration publicizing the objectives of the Law Firm Intimidation Policy. The President’s attacks on law firms through the Law Firm Orders are thus not isolated events, but one component of a broader, deliberate policy designed to intimidate and coerce law firms and lawyers to refrain from challenging the President or his Administration in court, or from even speaking publicly in support of policies or causes that the President does not like.

That is what measures the “necessary witness” element in Rule 3.7. Is a lawyer in the Susman firm the only one who can provide testimony concerning the truth or falsity of the allegations concerning the “law firm intimidation policy”? That is what “necessary” means, by the way. If there is another witness whose testimony could establish the truth or falsity of the proposition in question, the lawyer is not a necessary witness. This is why lawyers who conduct witness interviews always bring along a paralegal or investigator; that way, if the witness flips and it’s necessary to impeach them at trial, the paralegal or investigator can provide the testimony and the lawyer is not disqualified under Rule 3.7(a).

But there’s no argument in the DOJ’s motion that any of the lawyers participating in the representation (see, e.g., the signature block on p. 85 of the complaint) are the only source of testimony that is likely to be necessary at trial or in pretrial proceedings. Heck, there’s not even a claim that a lawyer at Susman intends to testify to anything at all. All the DOJ is saying is that Susman is a party to one of the executive orders while also serving as counsel to the ABA. “Party” is not the same thing as “necessary witness.” These are some pretty lousy textualist lawyers.

Move on to Step 2, imputation. Let’s suppose, counterfactually, that there is some proposition at trial or in pretrial litigation on which Lawyer A from Susman Godfrey is likely to be a necessary witness. Rule 3.7 says that Lawyer A is disqualified from serving as an advocate at trial, and I accept the extension in caselaw to pretrial proceedings. But the rule is also clear that the personal disqualification of Lawyer A is not imputed to other lawyers in the firm. The D.C. version of Rule 3.7(b) has some convoluted drafting, so look at the ABA Model Rules version, which the DOJ cites and relies on in its motion (p. 5):

A lawyer may act as 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

This is clearly a rule of non-imputation of the personal disqualification of Lawyer A. It says in plain language that Lawyers B, C., D, . . . N, at the same firm may act as an advocate at trial

The reference to Rules 1.7 and 1.9 in the ABA and D.C. version of Rule 3.7(b) are to conflict of interest rules. it’s easiest to see this under Rule 1.7(a)(2): If the dual role of Lawyer A as advocate and witness would somehow create a significant risk of materially limiting Lawyer B’s representation as an advocate at trial – maybe because Lawyer B wouldn’t want to embarrass Lawyer A by conducting a vigorous cross-examination – then Lawyer B would be independently conflicted out of the representation under Rule 1.7(a)(2). But this is not the same thing as the imputation of the personal disqualification of Lawyer A to other lawyers in the firm. The D.C. version of Rule 3.7(b) says the same thing, but again with kind of convoluted drafting.

The DOJ tries to get around this clear textual principle of non-imputation by treating Lawyers A, B, C, . . . N at the firm as though they are one. In its conclusion (p. 10), it argues:

Susman continues to seek its own documents in this litigation and, by its own actions, demonstrates that it is a percipient witness to the claims it brings on behalf of the ABA.

No, no, no, no! A law firm cannot be a percipient witness to anything; only individual lawyers within a firm can. If one of these lawyers is likely to be a necessary witness at trial (that is, no one else could testify to the same factual proposition), then that lawyer is disqualified from acting as an advocate at trial. But that disqualification is not imputed to others in the firm. The repeated references to “Susman” is a transparent attempt to wish away the structure of Rule 3.7.

The non-imputation of any personal disqualification, along with Susman’s careful handling of the dual roles of advocate and witness, dispose of this motion straightforwardly. At the end of its motion, describing the required meet-and-confer process, the DOJ inadvertently explains why its motion is frivolous:

Before filing this motion, counsel for Defendants sent Plaintiff’s counsel an email seeking Plaintiff’s position on the instant motion and in response, Susman indicated that the third party subpoena was being handled by the firm’s General Counsel and not the team litigating this matter, that the firm is represented by outside counsel in the Susman lawsuit, and made clear that they opposed this motion.

The firm was exactly right to say nope, we don’t agree with your motion. Our in-house lawyer is handling the response to the subpoena and an outside law firm is representing the firm in the litigation over the constitutionality of the executive orders (which in any event is likely concluded, since the D.C. Circuit oral argument on the appeal from summary judgment in favor of the firm was in May).

It’s obvious what’s going on here, which is that the administration really, really doesn’t want Susman conducting discovery of communications between Boris Epshteyn and the leaders of the firms that settled with the administration. The firm is famously good at discovery. In the defamation litigation on behalf of Dominion Voting Systems against Fox News, the firm uncovered a number of incriminating and embarrassing emails and other documents, which created enough risk of a debacle at trial that the company agreed to settle for $787.5 million.

I still think it’s weird that the DOJ is trying to conduct discovery in this litigation of more or less the same set of communications that it is resisting allowing Susman to conduct discovery of. But on the theory that you can tell when an attempt at discovery is getting close to something important when the opponent starts squawking really loud, it’s clear that the administration is worried about what Susman will turn up when it starts conducting discovery into the process of enacting the executive orders in the early months of the second Trump administration. Still, that’s no excuse for this completely unfounded, shameless, abusive disqualification motion. In a sane world, the district judge would not only deny it but would impose sanctions for bringing it, including a requirement that these lawyers go back and re-take a basic PR class.