Appellate Division Analyzes Advocate Witness Rule In Legal Malpractice Context

In a recent decision involving the ongoing battles between two well-known New Jersey law firms, the New Jersey Appellate Division performed a thorough analysis of the “advocate witness” rule, which is often used both offensively and defensively when a case is highly contested and one or more of the litigators are also witnesses.

New Jersey Rule of Professional Conduct 3.7 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.”

In Escobar v. Mazie, Docket No. A-2509-18T1 (App. Div. Aug. 8, 2019), the defendants appealed from their disqualification from representing themselves at depositions or trial in a legal malpractice action brought against them by plaintiff, defendants’ former client. The defendants represented the plaintiff in a civil suit against the state of New Jersey, two hospitals, and several individuals for catastrophic injuries plaintiff’s infant grandson suffered at the hands of his father. The plaintiff settled her claims against the private entities, and a jury found the state 100 percent liable for the baby’s injuries. The state appealed, and during the pendency of the appeal the state made offers to settle. The plaintiff rejected the state’s offers, and the judgment in her favor was ultimately overturned on appeal after the court found that the state employees were entitled to qualified immunity. The plaintiff filed a malpractice suit against the defendants, arguing they failed to properly advise her of the risks on appeal and therefore rendered her unable to make an informed decision about the state’s settlement offer. The plaintiff further alleged that the defendants took illegal disbursements for overhead and failed to file suit on her individual behalf.

The plaintiff moved to disqualify the defendants from representing themselves in the malpractice case. The plaintiff argued that the defendant attorneys would be necessary witnesses at trial, and thus RPC 3.7 barred their participation as counsel for the defendants in any phase of the litigation. The trial court granted the motion (except as to one of the defendants’ attorneys, who certified that he had no involvement in the plaintiff’s underlying case).

On review, the Appellate Division reversed the trial court decision. The Appellate Division agreed with the defendants that RPC 3.7 is a rule addressed “only to a lawyer acting as an advocate at trial” and therefore ruled that the trial court judge erred in barring all the defendant-lawyers from representing the defendants at depositions or in any other pre-trial matters. The Appellate Division found that that any decision to disqualify any of the defendant-lawyers based on RPC 3.7 was premature at such an early stage of the case.

The Escobar decision provides valuable guidance on how to effectively use the advocate witness rule and defend against its application. First, there is no need to bring a disqualification motion under RPC 3.7 early in the case. Second, it is very unlikely that a court will disqualify a lawyer from participating in pre-trial activities. Third, the lawyer’s testimony must be “necessary” – i.e., “unobtainable elsewhere.” These contours make an RPC 3.7 disqualification less of an easy litigation tactic – but there are always arguments to be made. Under Escobar, courts are required to undertake a “painstaking analysis of the facts and precise application of precedent” – leaving the door open for many arguments to be made in support of or against RPC 3.7 disqualification motions.

Escobar v. Mazie, Docket No. A-2509-18T1 (App. Div. Aug. 8, 2019) is available at:

To discuss legal malpractice or commercial litigation matters with this article’s author, please contact:

Jonathan P. Vuotto, Esq.

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