INTRODUCTION

"A barrister may be briefed as counsel in a case or he may be a witness in a case. He should not act as counsel and witness in the same case."

These wise words were those of Justice Humphreys of the English Court of King's Bench in the 1941 case of R v Secretary of State for India, who added that to do so was "irregular and contrary to practice".

Common sense. You think?! Well, Virginia, lawyers try to have their cake and eat it all the time and too many other lawyers and judges don't know to object to it or fear some sacred line might be crossed.

In Bank of British North America v. McElroy, Justice Ritchie of New Brunswick described the practice of putting one's lawyer up as a witness as "indecent" and that it "should be discouraged".

They were reiterated in Canada by the Manitoba Court of Appeal in Deslauriers when Justice Twaddle wrote:

"It is a long-established rule that a lawyer should not be both counsel and a witness in a case."

DR. JEKYLL AND MR. HYDE

The old saying that the lawyer representing himself has a good lawyer but a fool for a client applies, mutatis mutandis, to the lawyer-witness.

Only a fool would attempt to act as lawyer and witness in the same court case.

Lawyer as a witnessBut over the years the years, some lawyers get cocky and others get careless, both incurred by judges who turn a blind eye or who try to split hairs by saying that even if a lawyer is a witness, he or she is not a material witness and at the end of the day, the client should be able to choose whatever lawyer the client wants - even a fool!

The problem with that is lawyers are also officers of the court and as any witness will tell you, entering the witness box immediately puts your credibility into play. Not only does this carry with it the risk that the court finds the lawyer-witness to not be credible, but the lawyer also has the professional conduct obligation to never mislead the court! It's a paradox no lawyer should put a court through.

As officers of the court, the lawyer has certain responsibilities unique to that privilege. As the authors of Halsbury's Laws of Canada (Civil Procedure, ¶HCV-51) wrote:

"The obligation to the court of a lawyer who is acting as an advocate in a court proceeding is primary, and must take precedence where it conflicts with the interests of the client."

The lawyer has a truckload of rules of conduct to control his professional enthusiasm as a privileged participant in litigation. He (she) cannot lightly allege fraud or fail to refuse a contrary authority or intentionally waste or unnecessarily prolong court time.

In terms of one lawyer's relationship with the other, they are supposed to treat each other with respect and professional courtesy yet when they fight for their client in the midst of litigation, they are expected to attack a witness's credibility when possible.

How does this mesh with being a witness? It doesn't.

THE "SOLUTION"

Because of the unique (and lucrative) relationship lawyers have within the justice system, and the court, nearly every professional regulation governing the conduct of lawyers has a statement such as this:

"A lawyer who appears as an advocate should not submit the lawyer's own affidavit to or testify before a court or tribunal except as to purely formal or uncontroverted matters, such as the attestation or custody of a document, unless it is necessary in the interests of justice. If the lawyer is a necessary witness with respect to other matters, the conduct of the case should be entrusted to other counsel."1

The more generic version of this prohibition is set out in the 2011 Westlaw's Canadian Encyclopedic Digest, as follows:

"Counsel in court is not to occupy in any way the dual position of advocate and witness. However, counsel may continue to act for a client where counsel is potentially a witness, but not a material one and counsel may continue to act when there is no suggestion that the evidence to be given by the lawyer will be controversial."

JUDICIAL TOLERANCE

However, for some mysterious reason, the courts are quite prepared to pay no heed to the wisdom of professional conduct guidelines in this area.

Justice Howard said as much in Major v Higgins:

"[A]lthough it is widely acknowledged and authoritatively asserted to be contrary to the ethics and against the best interests of the profession for an advocate to testify on behalf of his own client in a case which he is conducting, I can find no rule of law that forbids him to do so. A canon of legal ethics, no matter how strongly approved by the members of the profession, and by the public too for that matter, has not the force of a rule of evidence and cannot be applied as such."

The big problem is not really with the education or regulation of lawyers; it is with the courts who approach this issue with kid gloves and in so doing, exacerbate the problem and encourage lawyers. For example in one 1974 British Columbia Court of Appeal case, Phoenix v Metcalfe, Justice McFarlane left a disconcerting judgment for the entire legal world to agonize over. Here are his equivocal words left behind in the law reports:

"[T]here is no rule of law which denies a litigant the right to have his counsel testify as a witness on his behalf. While as a matter of propriety, counsel should generally not give evidence, it is not within the authority of a trial judge to require counsel to elect either to give evidence or to continue as counsel…. [I]f such an election be required it is really the client who is called upon to elect and his counsel must then elect on behalf of the litigant and not on his own behalf."

This follows a lazy precedent set by the Supreme Court of Canada in Stanley v Douglas (1952) in which Justice Cartwright suggested that as a matter of law, lawyers can testify in the cases in which he acts as lawyers even though, he added, almost as an anecdote, that he, Cartwright, personally disapproved of such a course of action!dodo judge

Paradox? In that same case, Justice Kerwin said:

"[N]o one appearing as counsel for any party should give evidence."

Twenty-two years later, the Supreme Court of Canada appeared to pull back from the equivocal law set by Stanley v Douglas but the wisdom came in the form of obiter dictum. But for the record, the highest court of the land still criticized the trial judge who did not require a lawyer to withdraw before testifying:

"Counsel for the appellant was correct in saying that counsel [for the plaintiff] ought to have refrained from taking any part in the trial, not even to provide evidence pertaining to other points in the case. Nor should the judge have tolerated such participation."

Not all judges are timid with this issue. In Gunther v Cohn, when the lawyer announced at the beginning of the trial that he may call himself as witness, Justice Williams of the Manitoba Court of Queen's Bench very smartly demanded that he - the lawyer - had to elect between acting as lawyer or been called as a witness. He could not be both.

In a 1982 professional publication, Supreme Court of British Columbia judge Vanderhoop wrote that a lawyer who argues his case based on his own affidavit is agreeable if there is no issue over the facts alleged in the affidavit. However:

"If there is an issue arising out of the facts stated, I do not care how much opposing counsel consents, I will not hear counsel on that affidavit because counsel then turns into a witness as well."

Duh!

Plus ca change, plus c'est pareil (same old, same old): in the 1988 decision Carlson v. Loraas Disposal Services Ltd., the Saskatchewan Court of Queen's Bench went to great pains to skirt around the issue and accommodate a lawyer who was also to be a witness, prostrating his court at the altar of the client-solicitor relationship:

"It would be a dangerous doctrine which would permit one party to eject the opposition's counsel from the case simply by calling on him to testify or suggesting he might do so…. Theoretically, the situation can vary from a certainty that the lawyer will testify to a vague suggestion that he or she might testify. It is for the court to decide, on this consideration, and all other evidence before it, whether to apply the rule, at the time of the application, or, if at all, at a later point when there is a further application and it is more apparent that the lawyer is going to testify.... However, a court will not remove counsel based on mere speculation that counsel will be called as a witness in a proceeding."

THE MATERIAL WITNESS EXEMPTION

From this line of reasoning a strong thread of jurisprudence has developed that seeks to distinguish the material witness. What is or is not a material witness is difficult to define since by definition, and certainly in any dispute that is going to court , every witness is material, or they would not be called or relied upon.

The judicial shroud surrounding the concept of a material witness makes it difficult to articulate the state of the law but it does appear that a witness who delivers facts which are not in dispute is not a material witness.

In R. v. Deslauriers (1993), Justice Twaddle:

"[T]his rule has been applied not only in cases where evidence is given viva voce, but also in cases where it is given by affidavit. This means that a lawyer should not appear as counsel on a motion where his affidavit is before the court….

"The rigour of this rule is sometimes relaxed where the facts deposed to by counsel are non-controversial or where the interests of justice demand it. This relaxation is, however, a concession to expediency, ordinarily permitted only where the lawyer's credibility will not be impeached and where neither his conduct nor judgment is questioned.

"The scope of the rule is not limited to cases where council gives evidence directly. It extends to cases in which counsel relies on an affidavit sworn on the basis of information received from counsel, whether or not the affidavit expressly says so."

More problematic is the judicial statement in reference to the lawyer-witness who purports to deliver facts which go to the substance of the matter in dispute. What is or what is not the substance of the matter in dispute is not always readily known to the litigants or their lawyers at the beginning of a case, when it is most appropriate to strike to remove a lawyer for seeking to be a witness in his own case.

Often, the elusive "issue" is why the negation is necessary. It is only in the final reasons for judgment that as between the litigants anyway, the "substance of the matter in dispute" is made known with finality.

Following the material witness theory, it would only be the lawyer who was to testify as a material witness that ought to be enjoined from also acting as counsel. This black hole truly exist in Canadian law. See for yourself; for example, Justice Rideout of the New Brunswick Court of Queen's Bench in LeBlanc v Allain at ¶36… Dominion Explorations Partnership v. Enron (2007, ABQB)… and Elbaz v Currie at ¶9, 17-18.

In Webb v Attewell, at ¶31, Madam Justice Southin of the British Columbia Court of Appeal clearly established British Columbia as a jurisdiction prepared to wink at lawyer witnesses by distinguishing by virtue of the significance of their proposed evidence:

"The law does not forbid a barrister appearing for his client because he has given, or may have to give, evidence. The rule of professional practice is that he or she ought not to do so when doing so may put the court in an invidious position. The court is in an invidious position when counsel gives evidence on a contested issue. When counsel does that, he or she is also in the embarrassing position of inviting the court to accept counsel's evidence rather than that of another witness."

CONCLUSION

The conclusion is that there is no conclusive statement that can be made in this area. It is very regrettable that lawyers would be encouraged by timid judges to give affidavit or viva voce evidence in their own cases especially when the law societies so strictly attempt to prohibit the behavior.

Of course, lawyers are like anybody else: why not take a shortcut if one is available. Until and unless the door is shut on this conduct, we will be stuck with the inevitable result of judges in charge of court rules: confusion and chaos as from one distinction to another, one judge to another, a lawyer-witness is either winked at or forced to choose between one or the other.

What we do know:

  • There is no zero-tolerance for lawyer-witnesses.
  • Lawyers often act as witnesses in their files, mostly by attempting to file their own affidavit.
  • This conduct is usually prohibited by their law societies except as to the iteration of the most routine of facts.
  • The courts have been giving mixed messages calling the practice indecent but then allowing it if not outright encouraging it, in cases where the lawyer purports to testify on facts which are not in dispute or would not otherwise be a material witness.

My Personal Experience

From practical experience from decades of litigation as a barrister in three provinces of Canada, I have always made it a point to object to a lawyer's affidavit filed and then relied upon in his or her own case. But lawyers get away with it all the time. The judges say that it's up to the other side to object, and object as soon as possible. But as soon as you object, the Court reverses the onus by musing aloud if this is just a stunt to bully the other side by making them find another lawyer, so you find yourself on the defensive. Lawyers are now weary of the lack of judicial support for this "indecent" practice and it is more and more prevalent. It is cut down once in a while by some assertive judgment but none ever kills it outright, so like a weed, it comes back greener, bigger, stronger..... {Lloyd Duhaime, July 24, 2011}

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