Cibson, supra. At least one concurring opinion goes so far as to deem it improper for a testifying lawyer even to sit at the counsel table during trial because it may appear to the jury that he is an attorney in the case, Aetna Casualty & Surely Compally v. Broadway Arms Corporalion, 281 Ark. 128, 140, 664 S. W.2d 463, 469 (1983)(concurring opinion of Justice Hickman). Effect of Disqualification on Fee The attorney who is forced to withdraw from a case because he plans to testify can be paid for his services prior to withdrawaJ. But if the attorney's fee is contingent on the amount recovered for the client, the attorney continues to have an interest in the outcome, which may undermine his credibility as a witness. This conflict concerned the court in Aelna Casualty & Surety Company u. Broadway Arms Corporation, supra, but not enough to bar the withdrawing attorney from dividing a contingent fee with the lawyer who replaced him. The decision is troubling, particularly in light of the separate prohibition against compensating a witness based on the outcome of the case. DR 7109(c); Comment 3 to Rule 3.4(b). The potential conflict for the testifying attorney can be reduced, though not necessarily eliminated, if the withdrawing attorney is compensated on a quantum meruit rather than a contingent fee basis. This is the rule normally applied when the client discharges an attorney after agreeing to pay the attorney a fee contingent on the amount recovered. Henry, Walden, and
Davis u. Goodman, 294 Ark. 25, 741 S. W.2d 233 (1987). Whether the attorney will be paid may still depend on the outcome of the trial, but not the amount the attorney will be paid. Sanctions for Violation of the Attorney-Witness Rule An appellate court which determines that an attorney has improperly acted as both witness and advocate in a proceeding must resolve two questions. First, because the attorney has violated a rule governing professional conduct, the court must decide what disciplinary action, if any, is appropriate. A second, distinct issue is the evidentiary problem of how to treat the attorney's testimony. When confronted by a violation of the attorney-witness rule, Arkansas appellate courts have not always considered and distinguished ethical and evidentiary questions. Ethical concerns dominate numerous decisions which admonish attorneys not to testify without addressing the admissibility of attorney testimony in the particular case. Walson v. Alford, 255 Ark. 911, 503 S.W.2d 897 (1974); Dingledine v. Dingledine, supra; Canal Insurance Company u. Hall, 259 Ark. 797, 536 SW.2d 702 (1976); lones v. Hardesly, 261 Ark. 716,551 S.W.2d 543 (1977); Enzor u. Siale, 262 Ark. 545,559 S.W.2d 148 (1977); Milburll v. State, supra; Bishop u. Lillkway Siores, Inc., supra. Several decisions go further, holding that while a violation of the attorneywitness rule may warrant disciplinary action against the lawyer, it does not, standing alone, render the lawyer's testimony inadmissible. Weathersbee u. Wallace, 14 Ark. App. 174, 686 SW.2d
LITIGATION SUPPORT - When your case rests on effective analysis and presentation of complex economic and financial issues, Research & Planning Consultants can provide the expert assistance you need. Our experience includes contract, tax, anti-trust, libel, environmental, healthcate, product liability, oil & gas, securities, and personal injury cases. Our team of atrorneys, economists, accountants, medical & vocational experts, srarisricians, demographers & database experts has a winning record on liability and damage issues. Attorney references available upon request. For a confidential initial meeting ar no obligarion, call Research & Planning Consultants, Patrick W. Fitzgerald, 121 Collier Dr., Ste. 600, Norman, OK 73069, (405) 360-7675 or (800) 456-6244.
447 (1985); Montgomery v. Firsl National Bank of Newport, sllpra. What is curious about these decisions focusing on the ethical dimensions of the attorney-witness rule is that none of the opinions indicates that the violation of the rule was referred to the Supreme Court Committee on Professional Conduct. This can be contrasted with cases involving attorneys who file belated appeals, arguably a less serious ethical breach, in which violations are routinely referred to the Committee fot its information in the event of future complaints against the attorney. In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979). In a few cases the Supreme Court has considered the evidentiary problems posed by violation of the attorney-witness rule as an evjdentiary problem and excluded attorney testimony that affected the outcome in the lower court. This has sometimes meant simply ignoring the attorney's testimony when reviewing the record. McIntosh v. SOlllilwestern Truck Sales, sllpra; Calton Properlies. Inc. u. Ken's Diseollnt BlIilding Malerials, Inc., supra; McWilliams & Kimes u. Tiller, 256 Ark. 994, 511 S. W.2d 480 (1974). But the court has been willing to reverse and remand for a new trial when the attorney's testimony was critical to the outcome in the trial court. Boling v. Gibsoll, sllpra. Tne ethics sanction and the evidentiary sanction are not mutually exclusive. The purposes for the rule should guide its application to a particular case. If the lawyer's testimony confused the trier of fact or
Grief &: Healing Work Couples Counseling Infertility Workshops Adoption Home Studies
L. Lee Cowan Board Certlfled Diplomate In Cllnlcal SocW Work (!SOl) 664-7252
Little Rock