The “lawyer-witness” rule, RPC 3.7, includes two levels of disqualification. First, a lawyer is generally precluded from being trial counsel if the lawyer will also be a “necessary” witness. Personal disqualification of the lawyer-witness from being trial counsel is to avoid jury confusion between the roles of advocate and witness. Second, the lawyer’s firm will ordinarily need to withdraw if the lawyer-witness will be providing material testimony adverse to the client the lawyer’s firm is representing in the case. Firm disqualification usually follows from the conflict inherent in that scenario.
The federal district court in Seattle recently issued a reminder, however, that simply because a law firm lawyer may be a trial witness does not automatically result in disqualification. Fisher v. Boeing Company, 2026 WL 2427641 (W.D. Wash. Aug. 19, 2026) (unpublished), involves litigation over door bolts in a plane manufactured by the defendants. One of the lawyers for defendant Boeing’s law firm formerly worked in regulatory compliance in-house at Boeing. The plaintiff moved to disqualify the lawyer under RPC 3.7 as a “lawyer-witness.”
The court denied the motion. In doing so, the court noted that under Public Utility Dist. No. 1 of Klickitat County v. International Ins. Co., 124 Wn.2d 789, 881 P.2d 1020 (1994), to be disqualified as a “necessary” witness under Washington RPC 3.7, the moving party on a disqualification motion must show that the lawyer-witness possesses material evidence that cannot be obtained anywhere else. The court found that the plaintiff had failed to make that required showing.
Again, the personal disqualification in RPC 3.7 generally only applies to serving as counsel at a jury trial. Therefore, another lawyer at the firm involved could serve as trial counsel even if a firm lawyer is a trial witness as long as the lawyer’s testimony is consistent with the client’s position. RPC 3.7 typically only becomes a rule of law firm disqualification when the firm’s lawyer’s testimony will be materially adverse to the law firm’s client. RPC 3.7(b) speaks to these points: “A lawyer may act as advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 [current client conflicts] or Rule 1.9 [former client conflicts].”
Although Fisher does not plow any new analytical ground, it serves as a useful reminder that disqualification under RPC 3.7 is not automatic.
Mark Fucile. Mark handles professional responsibility and law firm risk management throughout the Northwest. He has chaired the WSBA Committee on Professional Ethics, is editor-in-chief of the WSBA Legal Ethics Deskbook and teaches legal ethics as an adjunct for the University of Oregon School of Law at its Portland campus. He can be reached at 503-860-2163 andmark@frllp.com.
