![]() The conflict of interest principles stated in Rules 1.7, 1.9 and 1.10 have no application to this aspect of the problem. It is relevant that one or both parties could reasonably foresee that the lawyer would probably be a witness. Even if there is risk of such prejudice, in determining whether the lawyer should be disqualified, due regard must be given to the effect of disqualification on the lawyer's client. ![]() Whether the tribunal is likely to be misled or the opposing party is likely to suffer prejudice depends on the nature of the case, the importance and probable tenor of the lawyer's testimony, and the probability that the lawyer's testimony will conflict with that of other witnesses. Apart from these two exceptions, paragraph (a)(3) recognizes that a balancing is required between the interests of the client and those of the tribunal and the opposing party. Moreover, in such a situation the judge has firsthand knowledge of the matter in issue hence, there is less dependence on the adversary process to test the credibility of the testimony. Paragraph (a)(2) recognizes that where the testimony concerns the extent and value of legal services rendered in the action in which the testimony is offered, permitting the lawyers to testify avoids the need for a second trial with new counsel to resolve that issue. Paragraph (a)(1) recognizes that if the testimony will be uncontested, the ambiguities in the dual role are purely theoretical. To protect the tribunal, paragraph (a) prohibits a lawyer from simultaneously serving as advocate and necessary witness except in those circumstances specified in paragraphs (a)(1) through (a)(3). It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof. A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. The opposing party has proper objection where the combination of roles may prejudice that party's rights in the litigation. ![]() The tribunal has proper objection when the trier of fact may be confused or misled by a lawyer serving as both advocate and witness. Combining the roles of advocate and witness can prejudice the tribunal and the opposing party and can also involve a conflict of interest between the lawyer and client.
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