Can An Attorney Testify

[non sequitur]

Can the attorney for a party testify on behalf of the party in a bench trial in a civil case?

I am in California. Rule 5-210 only applies to jury trials. Does that mean there is no prohibition in bench trials.


Thank you.

[aaron]

This case (.doc file) suggests that an attorney can testify in any action. The rule is one of ethics, which means that its violation can result in the discipline of the lawyer.

Nor did California Rules of Professional Conduct, rule 5-210, require exclusion of the attorneys’ testimony. That rule provides, “A member shall not act as an advocate before a jury which will hear testimony from the member” except in circumstances not present here. Rule 5-210 is not directly applicable, because the attorneys for Daniels and Watts were not acting as advocates before a jury. Moreover, despite Rule 5-210, there is no categorical rule preventing a party from calling an attorney as a witness in a criminal proceeding in which the attorney is acting as counsel. (People v. Earp (1999) 20 Cal.4th 826, 879.) An attorney acting as counsel in a case “is as competent to testify as any other witness.” (People v. Guerrero (1975) 47 Cal.App.3d 441, 444; Romeo v. Jumbo Market (1967) 247 Cal.App.2d 817, 820 [an attorney participating in a trial is competent to give testimony; the “real objection to such testimony” is not one of competence, but of legal ethics].) For example, under some circumstances a defendant may call his own attorney or the prosecutor as a witness. (People v. Marquez (1992) 1 Cal.4th 553, 574 [“a trial court may not deny the defendant the right to present impeaching evidence through the testimony of his counsel, notwithstanding the provisions relating to testimony by counsel in the Rules of Professional Conduct”].)

The case goes on to explain that the trial court properly excluded the lawyer as a witness due to the possibility of interference between two of the defendants and their attorneys.