The Attorney as Advocate and Witness: Does the Prohibition of an Attorney Acting as Advocate and Witness at a Judicial Trial also Apply in Administrative Adjudications?

It is generally accepted that an attorney who is representing a client at a judicial trial is not permitted to also be a witness at the same trial. This prohibition on an attorney acting as both an advocate and a witness at a trial appears in every state's rules of professional conduct. This rule, often referred to as the “lawyer as witness” rule, has application in attorney disciplinary proceedings, rulings on the admissibility of evidence, motions seeking disqualification of an attorney who intends to testify, legal malpractice cases, and petitions for the award of attorney's fees. The lawyer as witness rule has also been applied in administrative adjudications.

There is a split of authority, however, whether the lawyer as witness rule does apply in administrative adjudications. The purpose of this article is to discuss the present state of the law with regard to the attorney/advocate as witness prohibition in administrative adjudications, and to suggest a proposal for how this issue should be handled by administrative agencies and administrative adjudicators.