When a Lawyer Becomes a Witness

A large part of a family lawyer’s practice involves negotiating, preparing, and providing legal advice on settlements and agreements.  However, once a lawyer has engaged in representing a client in settlement discussions, or provided legal advice to a client on settlements or agreements, the role of the lawyer can rapidly transition from one of advocate and counsel, to one of being a witness, whether the lawyer wishes it or not.

This can often happen when a dispute arises either in relation to a settlement that is ultimately reneged upon, or if disputes arise regarding the interpretation of a finalized agreement.  As legal counsel are intrinsically involved in the negotiation and drafting of agreements, or in negotiating settlements, the communications between counsel and their clients can often form a relevant part of understanding the intentions of the parties and the aim of the agreement, and can be key to interpreting aspects of agreements that may not be so clear on their reading.

As a result, it can frequently arise that a lawyer might become a witness in respect of any proceedings to determine the meaning of an agreement or settlement.  This is particularly so when the lawyer for a party to an agreement maintains that an agreement or settlement intended one thing, when the settlement or agreement does not explicitly state such.  In essence, if the only individuals to the negotiation of an agreement are the parties and their counsel, the parties are not independent, leaving the lawyers as presumably “objective” witnesses to the content, scope, and meaning of the negotiated agreement.

This matter arose recently in the case of Stanfield v. Low, 2019 ABCA 83, wherein counsel had been involved in the negotiation of a settlement that had ultimately not proceeded.  The Plaintiff sued his former common law partner for the failure to complete the settlement, and among other applications, the Defendant brought an application to remove the Plaintiff’s counsel as lawyer of record on the grounds that the counsel would be a witness in the disposition of the lawsuit.  Notwithstanding that the Plaintiff’s counsel maintained the position that he could be both legal counsel and a witness for the Plaintiff, Justice Miller held that this was not sustainable and on the basis that a lawyer cannot be both counsel for a party and a witness for the party, he removed the Plaintiff’s counsel as lawyer of record.

The Plaintiff appealed this finding of Justice Miller and the Plaintiff’s counsel sought advice and direction from the Court of Appeal as to whether it was permissible for him to act as counsel for the Plaintiff on the Appeal.  In so determining this question Justice Antonio of the Court of Appeal of Alberta held that it is trite law that a lawyer should not act as both witness and advocate on the same file as it would, in general, create a conflict of interest.  It was noted that the Law Society of Alberta Code of Conduct addresses and prohibits lawyers from providing evidence or anything that could be subject to legal proof, cross-examination, or challenge in a matter before a court over which the lawyer has conduct.  Effectively, as stated by Justice Antonio, acting in such a double role interferes with the lawyer’s ability to act with objectivity given the competing aspect of the obligation to provide observations and beliefs from an objective and neutral basis as a witness, and the obligations the lawyer owes to their client.

Of significance is the fact that Justice Antonio cited cases in which it was held that not only should a lawyer be precluded from representing a client when they may be called as a witness in their client’s matter, but that all members of that lawyer’s firm should similarly be excluded as possible counsel for the client.

Ultimately, while it is commonplace for family law lawyers to engage in negotiations on behalf of their clients, respecting settlement, it is important for all family law counsel to recognize that any disputes arising in respect of the settlement, or the meaning or interpretation of any agreement arising from settlement can create circumstances in which the lawyer may be called as a witness to speak to their understanding of what proceeded at settlement, or what the agreement meant.  In such a case, that lawyer can no longer continue to represent their client, and cannot be the counsel of record for any proceedings in which the settlement or agreement arising from settlement is in dispute.

If you have a matter in which a settlement or agreement is being disputed, the lawyers at Mincher Koeman LLP have the experience and skills to help you.  Give us a call at (403) 910-3000 or email us at reception@mincherkoeman.com.