The Lawyer as Advocate and Witness
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The Lawyer as Advocate
and Witness
R ECENTLY attention has focused on
finding the correct rationale of the
prohibition of a lawyer's being both ad-
vocate and witness in a case.
The description in the January issue
of this Journal (page 141) of Arnold N.
Enker's article in the American Bar
Foundation Research Journal indicates
that Professor Enker concludes that the
correct rationale is that of former Canon
15 of the Canons of Professional Ethics.
This provided that it is improper for a
lawyer to assert in argument his per-
sonal belief in his client's innocence or
the justice of his cause. The same pro-
vision is now found in Disciplinary
Rule 7-106(C)(4) and Ethical Considera-
tion 7-24 of the Code of Professional
Responsibility, which add a prohibi-
tion of any expression of personal opin-
ion as to the credibility of a witness.
I believe that the rule against combin-
ing the roles of advocate and witness
(D.R. 5-101(B) and D.R. 5-102(A) of the
code) is highly desirable. I am skepti-
cal, however, as to supporting it by ref-
erence to the general rule against a
lawyer's expressing his personal beliefs
in argument, because I question the
wisdom or enforceability of that rule.
In reality, I think, the rule is probably
honored more in the breach than the
observance. Skill in implying to a jury
the lawyer's personal opinion in sup-
port of his client is generally regarded
by lawyers and laymen as a hallmark of
competence.
The same view was expressed by
Judge Charles E. Brieant of the United
States District Court for the Southern
District of New York, who had exten-
sive experience at the bar as a trial law-
yer, in a perceptive opinion in United
States v. Sangemino, 401 F.Supp. 903
(S.D.N.Y. 1975). In denying a motion
for a now trial in a criminal case on the
basis of a claim that the defendant had
not been competently represented at a
trial, he referred to the defense lawyer's
conduct as follows:
Insinuously, he placed his own in-
tegrity behind that of the defendant,
and conveyed subliminally to the jurors
by word and manner his absolute per-
sonal belief in Sangemino's innocence.
This common tactic among defense at-
torneys is difficult to pull off suc-
cessfully, and apparently considered by
some to be unethical. [Citing and quot-
ing the relevant provisions of the Code
of Professional Responsibility.]
Nonetheless, the legendary great advo-
cates of the bar have always done it,
and there is little a trial judge can do to
prevent an attorney from endorsing
personally his client's protestations of
innocence.
One reason given by the code for
prohibiting a lawyer from being both an
advocate and a witness is, An advo-
cate who becomes a witness is in the
unseemly and ineffective position of
arguing his own credibility (E.C. 5-9).
This seems to be a realistic recognition
that argument as to credibility is to be
expected despite the rule of D.R.
7-106(C)(4) and E.C. 7-24 against that
argument.
The code suggests that a justification
for the prohibition of expressions of per-
sonal opinion is that were the rule
otherwise, the silence of a lawyer on a
given occasion could be construed un-
favorably to his client (E.C. 7-24).
Since, however, as Judge Brieant ob-
served, a lawyer's personal endorse-
ment of his client is a common tactic, the
failure to give one is likely to be con-
strued by a jury unfavorably to the client
despite the rule, of which the jury is
likely to be ignorant.
At least one case has recognized that
the silence of a lawyer may deprive his
client of competent representation. In
Johns v. Smyth, 176 F.Supp. 949 (E.D.
Va. 1959), it was indicated that the fail-
ure of a court-appointed defense coun-
sel in a criminal case to make any argu-
ment to the jury, because the lawyer per-
sonally believed his client guilty, was
tantamount to telling the jury that the
client had lied.
We are committed to the adversary
system of justice and the principle ex-
pressed in Canon 7 of the code that A
lawyer should represent a client zeal-
ously within the bounds of the law.
Prohibiting a lawyer from being both a
witness and an advocate is consistent
with the canon, since it is doubtful
whether the lawyer can effectively rep-
resent the client in arguing his own cred-
ibility as a witness. It seems to me, how-
ever, that to attempt to preclude a lawyer
who is not a witness from ex-
pressing opinions favorable to his
client's cause and the credibility of wit-
nesses supporting it is anomalous in an
adversary system, inconsistent with
zealous representation, unrealistic, and
unenforceable.
-RiCHARD Y. HOLCOMB
(Mr. Holcomb practices law with a
New York City firm.)
642 American Bar Association Journal
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