LAW OF LAWYERING
in court during the time that she is also a witness. The disqualified
lawyer may still represent the client, except in the particular litigation.
The lawyer disqualified in the instant case will still testify and probably
hopes to continue to represent the client. Thus, the motivation to
slant testimony continues to exist. Defendants and plaintiffs have an
even greater incentive to slant their testimony, yet we allow this testimony
and leave questions of credibility to the jury.
A more persuasive rationale for the rule is that the fact finder is
more likely to be confused if the same lawyer who argues the evidence
takes the stand to testify as to what that evidence is. Perhaps Professor
Wolfram had this rationale in mind when he stated that the testifying
advocate might "recite facts while commenting on the evidence."3 On
the other hand, all lawyers "recite facts" and "comment on the evidence"
when summing up and arguing their case before the jury. There
is nothing wrong with this. What damages the opposing party and confuses
the jury is when the witness comments on the evidence, in effect
arguing the case, while merely purporting to recite facts and give testimony.
Client consent does not cure this problem, for its rationale lies in
a systemic interest in ensuring fair results by not confusing the trier of
fact.3 2
If the basis of the advocate-witness rule is the possible confusion of
the trier of fact when the advocate is also a witness, that rationale calls
into question the rule imputing to the entire law firm the disqualification
of the one lawyer subject to the advocate-witness rule. The Model
Code requires automatic imputation, 3 while the Model Rules do not.34
Professor Wolfram notes this significant change and suggests that it