31 Ohio St. 3d at 258 “a trial court has the inherent power to regulate the practice before it and protect the integrity of its proceedings ' including the authority and duty to see to the ethical conduct of attorneys .”6 citing cases
- State v. Mason, 862 S.W.2d 519 (Mo. Ct. App. 1993).published “the rule barring an attorney from serving as a witness for his client is a rule of ethics and not of law”
- State v. Coleman, 2026-Ohio-965.publishedIn Mentor Lagoons, Inc. v. Rubin, 31 Ohio St.3d 256, 259-260 (1987), the Court held that a trial court has the “‘inherent power to regulate the practice before it and protect the integrity of its proceedings,’” including the “‘“authority a…
- Kline v. Morgan, Unpublished Decision (1-3-2001), No. s. 00CA2702, 00CA2712 (Ohio Ct. App. 4th Dist. Jan. 3, 2001).unpublished
- City of Whitehall v. Bowman, 07ap-802 (5-1-2008), 2008 Ohio 2279 (Ohio Ct. App. 10th Dist. 2008).published
- Thomas L. Meros Co., L.P.A. v. Grange Mut. Cas. Co., 730 N.E.2d 1063 (Ohio Ct. App. 8th Dist. 1999).published
- Landzberg v. 10630 Berea Road, Inc., Unpublished Decision (3-14-2002), No. 79574 (Ohio Ct. App. 8th Dist. Mar. 14, 2002).unpublished
31 Ohio St. 3d at 259 Counsel's competency to testify as a witness6 citing cases“This includes the inherent authority of dismissal or disqualification from a case if an attorney cannot, or will not, comply with the Code of Professional Responsibility when representing a client”
- State v. Coleman, 2026-Ohio-965.publishedIn Mentor Lagoons, Inc. v. Rubin, 31 Ohio St.3d 256, 259-260 (1987), the Court held that a trial court has the “‘inherent power to regulate the practice before it and protect the integrity of its proceedings,’” including the “‘“authority a…
- Oakhill Invest., L.L.C. v. Toe, 2025-Ohio-4691.published Mentor Lagoons, Inc. v. Rubin, 31 Ohio St.3d 256, 259-60 (1987); Royal Indem. at 34 (“The trial court’s power to protect its pending proceedings includes the authority to dismiss an attorney who cannot, or will not, take part in them with…
- Shteiwi v. Shteiwi, 2023-Ohio-873.publishedMentor Lagoons Inc. v. Rubin, 31 Ohio St.3d 256, 259 (1987), citing Royal Indemn.
- State v. McClure, 2015-Ohio-5203, 54 N.E.3d 696.publishedAs explained further in Mentor Lagoons, Inc. v. Rubin, 31 Ohio St.3d 256, 259-260 (1987): This includes the inherent authority of dismissal or disqualification from a case if an attorney cannot, or will not, comply with the Code of Profess…
- Spero v. Avny, 2015-Ohio-4671, 47 N.E.3d 508.published“This includes the inherent authority of dismissal or disqualification from a case if an attorney cannot, or will not, comply with the Code of Professional Responsibility when representing a client”
- City of Maple Heights v. Redi Car Wash, 554 N.E.2d 929 (Ohio Ct. App. 8th Dist. 1988).published Mentor Lagoons, supra, at 259-260, 31 OBR at 462, 510 N.E. 2d at 382 ; Royal Indemnity Co., supra, at 34, 27 OBR at 450, 501 N.E. 2d at 620 ; cf. Melting v. Stralka (1984), 12 Ohio St. 3d 105 , 12 OBR 149, 465 N.E. 2d 857 (invalidating cou…
510 N.E.2d at 382 cited at this page3 citing cases
- State v. Mason, 862 S.W.2d 519 (Mo. Ct. App. 1993).published See, Mentor Lagoons, Inc. v. Rubin, 31 Ohio St.3d 256 , 31 OBR 459, 510 N.E.2d 379, 381 [1] (1987) (“the rule barring an attorney from serving as a witness for his client is a rule of ethics and not of law”).
- Robert Bright v. Gallia Cnty., Ohio, 753 F.3d 639 (6th Cir. 2014).publishedThe Ohio Supreme Court has stated repeatedly that “[a] trial court has the ‘inherent power to regulate the practice before it and protect the integrity of its proceedings ... ’ including the ‘authority and duty to see to the ethical conduc…
- Baker v. BP Am., Inc., 768 F. Supp. 208 (N.D. Ohio 1991).publishedGeneral Mill Supply Co. v. SCA Services, Inc., 697 F.2d 704 (6th Cir.1982) 7 ; Mentor Lagoons, Inc. v. Rubin, 31 Ohio St.3d 256, 260 , 510 N.E.2d 379, 382 (Syllabus 2) (1987).
31 Ohio St. 3d at 257 “[t]he roles of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the cause of another, while that of a witness is to state facts objectively”3 citing cases
- Heppner v. Chardon Kitchen & Bath, L.L.C., 2026-Ohio-3587.published“It is therefore important for the trial court to follow the proper procedures in determining whether disqualification is necessary.” Id. {¶15} Pursuant to Prof.Cond.R. 3.7(a), “[a] lawyer shall not act as an advocate at a trial in which t…
- Shoregate Towers NS, L.L.C. v. Ruple Builders, Inc., 2025-Ohio-5287.published “[t]he roles of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the cause of another, while that of a witness is to state facts objectively”
- Reo v. Univ. Hosp. Health Sys., 2019-Ohio-1411.published Id., citing Brown v. Spectrum Networks, Inc., 180 Ohio App.3d 99 , 2008-Ohio-6687, ¶11 (1st Dist.). {¶18} Prof.Cond.R. 3.7(a), entitled “Lawyer as Witness,” states “[a] lawyer shall not act as an advocate at a trial in which the lawyer is…
noting that the “Code of Professional Responsibility ‘does not delineate rules of evidence but only sets forth strictures on attorney conduct’” and that “[w]hen an attorney seeks to testify, his employment as counsel goes to the weight, not the competency, of his testimony
- Rayco Mfg., Inc. v. Murphy, Rogers, Sloss & Gambel, 2019-Ohio-3756, 142 N.E.3d 1267.published (noting that the “Code of Professional Responsibility ‘does not delineate rules of evidence but only sets forth strictures on attorney conduct’” and that “[w]hen an attorney seeks to testify, his employment as counsel go…)
- Rayco Mfg., Inc. v. Murphy, Rogers, Sloss & Gambel, 2018-Ohio-4782, 117 N.E.3d 153.published (noting that the "Code of Professional Responsibility 'does not delineate rules of evidence but only sets forth strictures on attorney conduct' " and that "[w]hen an attorney seeks to testify, his employment as counsel g…)
510 N.E.2d at 381 the rule barring an attorney from serving as a witness for his client is a rule of ethics and not of law1 citing case
- State v. Mason, 862 S.W.2d 519 (Mo. Ct. App. 1993).published (the rule barring an attorney from serving as a witness for his client is a rule of ethics and not of law)
31 Ohio St. 3d at 256 “if, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation i…”1 citing case
- State v. Agee, Unpublished Decision (6-30-1999), No. 95 Ca 189 (Ohio Ct. App. 7th Dist. June 30, 1999).unpublishedFurthermore, the attorney in that case, "* * * had himself sworn in as a witness and began to testify concerning his personal knowledge of the matter in controversy." Id. at 256 (emphasis added) The facts are much different in the present…
Other citing cases
- Krugliak, Wilkins, Griffiths & Dougherty Co., L.P.A. v. Lavin, 2020-Ohio-3123.published
- In re Disqualification of Forchione, 2011-Ohio-7077, 981 N.E.2d 875.published
- State ex rel. Myles v. Brunner, 899 N.E.2d 120 (Ohio 2008).published
- Avon Lake Mun. Utils. Dept. v. Pfizenmayer, 07ca009174 (2-4-2008), 2008 Ohio 344 (Ohio Ct. App. 9th Dist. 2008).unpublished
- Kallergis v. Quality Mold, Unpublished Decision (11-14-2007), 2007 Ohio 6047 (Ohio Ct. App. 9th Dist. 2007).unpublished
- Quigley v. Telsat Inc., 23481 (6-13-2007), 2007 Ohio 2884 (Ohio Ct. App. 9th Dist. 2007).published
- Amos v. Cohen, 806 N.E.2d 1014 (Ohio Ct. App. 1st Dist. 2004).published
- State v. Mack, 653 N.E.2d 329 (Ohio 1995).published
- State v. Mack, 73 Ohio St. 3d 502 (Ohio 1995).published
- Ross v. Ross, 640 N.E.2d 265 (Ohio Ct. App. 8th Dist. 1994).published
Show 3 more citing cases
- Columbus Credit Co. v. Evans, 613 N.E.2d 671 (Ohio Ct. App. 10th Dist. 1992).published
- Pilot Corp. v. Abel, Unpublished Decision (6-4-2002), No. 01AP-1204 (REGULAR CALENDAR) (Ohio Ct. App. 10th Dist. June 4, 2002).unpublished
- Creggin Grp., Ltd. v. Crown Diversified Indus. Corp., 682 N.E.2d 692 (Ohio Ct. App. 12th Dist. 1996).published
v.
Rubin
As a general rule, it is inappropriate for an attorney to testify on behalf of a client as in so doing he may breach ethical requirements. DR 5-102(A) provides that “[i]f, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances, enumerated in DR 5-101(B)(1) through (4).”[1]
The rationale for DR 5-102(A), as set forth in EC 5-9, is as follows:
“Occasionally a lawyer is called upon to decide in a particular case whether he will be a witness or an advocate. If a lawyer is both counsel and witness, he becomes more easily impeachable for interest and thus may be a less effective witness. Conversely, the opposing counsel may be handicapped in challenging the credibility of the lawyer when the lawyer also appears as an advocate in the case. An advocate who becomes a witness is in the unseemly and ineffective position of arguing his own credibility. The roles of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the cause of another, while that of a witness is to state facts objectively.” See, also, VI Wigmore on Evidence (Chadbourn Rev. 1976), Section 1911.
Obviously, ethical problems may arise when an attorney seeks to testify in a proceeding in which he represents a litigant. Consequently, he should strive to avoid having exclusive possession of evidence in a case in which he is serving as counsel. However, despite careful practice, situations do occur in which an attorney’s testimony is necessary to the presentation of a client’s case. Thus, the principal issue before us is whether a trial court may summarily refuse to allow an attorney to testify in a case in[*258] which he is representing a litigant on the grounds that such testimony may be in violation of the Code of Professional Responsibility.
We first observe that DR 5-102(A) may require an attorney to withdraw from representation of a client when he must testify on behalf of that client. It is not a flat prohibition against such testimony. Furthermore, EC 5-10 directs that when the issue arises, any “doubts should be resolved in favor of the lawyer[’s] testifying and against his becoming or continuing as an advocate.”
While this is a case of first impression in Ohio, other courts have had occasion to rule upon the issue. See Annotation (1971), 9 A.L.R. Fed. 500 and Annotation (1985), 35 A.L.R. 4th 810 — and cases cited therein. These courts have uniformly held that while it is much better practice for an attorney not to testify on behalf of his client, testimony by an attorney is competent evidence, if otherwise admissible. United Parts Mfg. Co. v. Lee Motor Products, Inc. (C.A. 6, 1959), 266 F. 2d 20, 24; Universal Athletic Sales Co. v. American Gym, Recreational & Athletic Equip. Corp. (C.A. 3, 1976), 546 F. 2d 530, 539; United States v. Birdman (C.A. 3, 1979), 602 F. 2d 547, 556; United States v. Morris (C.A. 7, 1983), 714 F. 2d 669, 671; Waltzer v. Transidyne General Corp. (C.A. 6, 1983), 697 F. 2d 130, 134; Hodge v. State (1976), 264 Ind. 377, 380, 344 N.E. 2d 293, 295; Gowdy v. Richter (1974), 20 Ill. App. 3d 514, 523, 314 N.E. 2d 549, 556; Barbetta Agency v. Sciaraffa (1975), 135 N.J. Super. 488, 495, 343 A. 2d 770, 774; Food Fair Stores, New Castle, Inc. v. Howard (Del. 1965), 212 A. 2d 405, 409; Miller v. Urban (1937), 123 Conn. 331, 334, 195 A. 193, 194; Farrell v. Farrell (1980), 182 Conn. 34, 37, 438 A. 2d 415, 417, at fn. 2. See, also, Annotation (1971), 9 A.L.R. Fed. 500; Annotation (1985), 35 A.L.R. 4th 810; VI Wigmore on Evidence (Chadbourn Rev. 1976) 788, Section 1911.
The Code of Professional Responsibility “does not delineate rules of evidence but only sets forth strictures on attorney conduct.” Universal Athletic Sales Co. v. American Gym, Recreational & Athletic Equip. Corp., supra, at 539. Consequently, in most jurisdictions, the rule barring an attorney from serving as a witness for his client is a rule of ethics and not of law. See In re Estate of Elvers (1970), 48 Wis. 2d 17, 179 N.W. 2d 881. An attorney is, of course, subject to disciplinary proceedings for violation of DR 5-102(A). In re Heilgeist (1984), 103 Ill. 2d 453, 469 N.E. 2d 1109; Universal Athletic Sales Co. v. American Gym, Recreational & Athletic Equip. Corp., supra, at 539; Barbetta Agency v. Sciaraffa, supra, 135 N.J. Super, at 495, 343 A. 2d at 774; Food Fair Stores, New Castle, Inc. v. Howard, supra, at 409; Miller v. Urban, supra, 123 Conn, at 334, 195 A. at 194. However, DR 5-102(A) is “not designed to penalize the litigant by depriving him of the benefit of testimony which may be vital to his case. Accordingly, the great weight of authority today holds that the attorney’s testimony is not rendered inadmissible by the ethics rule, because the client would otherwise suffer a punishment which ought to be imposed upon the lawyer.” Food Fair Stores, New Castle, Inc. v. Howard, supra, at[*259] 409. See, also, Gradsky v. State (Miss. 1962), 137 So. 2d 820; Richardson v. State (Miss. 1983), 436 So. 2d 790; VI Wigmore on Evidence, supra, at 788.
A trial court’s refusal to allow an attorney to testify has been held to be prejudicial error. In United States v. Vereen (C.A.D.C. 1970), 429 F. 2d 713, the appellate court concluded that the trial court erred in refusing to allow counsel to testify on behalf of his client because he was the only witness available to provide testimony concerning an aspect of the case, and he had offered to withdraw and obtain new counsel for his client. Similarly, the court in Miller v. Urban, supra, 123 Conn, at 335,195 A. at 195, concluded that “the offer to testify was ethically improper, but the exclusion of the testimony, on that ground, was legally erroneous.” See, also, Barbetta Agency v. Sciaraffa, supra, 135 N.J. Super, at 495, 343 A. 2d at 774; Waltzer v. Transidyne, supra.
Neither the Ohio nor the Federal Rules of Evidence exclude a lawyer’s testimony on behalf of his client. Ohio Evid. R. 601 provides that “[e]very person is competent to be a witness” unless he falls into one of the specified exceptions. Rules 605 and 606 provide that judges and jurors may not testify as witnesses in trials in which they are sitting. However, there are no evidentiary provisions specifically prohibiting the testimony by trial counsel.
Consequently, we hold that DR 5-102(A) does not render an attorney incompetent to testify as a witness in a proceeding in which he is representing a litigant. When an attorney seeks to testify, his employment as counsel goes to the weight, not the competency, of his testimony. Gowdy v. Richter, supra, 20 Ill. App. 3d at 524, 314 N.E. 2d at 556. This holding is not intended to otherwise reduce the trial court’s discretion in overseeing proceedings before it or in barring testimony which is inadmissible, irrelevant, prejudicial or cumulative, and we emphasize that an attorney’s testimony must be otherwise admissible pursuant to the Ohio Rules of Evidence. See Universal Athletic Sales Co. v. American Gym, Recreational & Athletic Equip. Corp., supra, at 539, fn. 22.
While we uphold the court of appeals’ reversal of the trial court’s summary refusal to admit Nozik’s testimony, we do not adopt the reasoning of the court of appeals that a trial court is completely without authority to protect against violations of ethical conduct. A trial court has the “inherent power to regulate the practice before it and protect the integrity of its proceedings * * *” including the “ ‘authority and duty to see to the ethical conduct of attorneys * * *.’ ” Royal Indemnity Co. v. J.C. Penney Co. (1986), 27 Ohio St. 3d 31, 33-34, 27 OBR 447, 449, 501 N.E. 2d 617, 620; see, also, D.H. Overmyer Co., Inc. v. Robson (C.A. 6,1984), 750 F. 2d, 31, 33; Canon 3A(2) of the Code of Judicial Conduct. This includes the inherent authority of dismissal or disqualification from a case if an attorney cannot, or will not, comply with the Code of Professional Responsibility when representing a client. Id. This power is distinct from the exclusive[*260] authority of the Supreme Court of Ohio over attorney disciplinary proceedings, and does not conflict with such power. Id. See, also, Section 5(B), Article IV of the Ohio Constitution and Gov. Bar R. V; Smith v. Kates (1976), 46 Ohio St. 2d 263, 75 O.O. 2d 318, 348 N.E. 2d 320; Brotherhood of Ry. Carmen of the United States & Canada v. Delpro Co. (D. Del. 1982), 549 F. Supp. 780. Indeed we hasten to approve and encourage courts throughout this state in their efforts to halt unprofessional conduct and meet their responsibilities in reporting violations of the Code. See Canon 3B(3) of the Code of Judicial Conduct.
We therefore conclude that when an attorney representing a litigant in a pending case requests permission or is called to testify in that case, the court shall first determine the admissibility of the attorney’s testimony without reference to DR 5-102(A). If the court finds that the testimony is admissible, then that attorney, opposing counsel, or the court sua sponte, may make a motion requesting the attorney to withdraw voluntarily or be disqualified by the court from further representation in the case. The court must then consider whether any of the exceptions to DR 5-102 are applicable and, thus, whether the attorney may testify and continue to provide representation. In making these determinations, the court is not deciding whether a Disciplinary Rule will be violated, but rather preventing a potential violation of the Code of Professional Responsibility.
In the subject case, the trial court erred in holding that DR 5-102(A) barred Nozik’s testimony, Accordingly, for the reasons stated herein, the judgment of the court of appeals, as modified, is affirmed and the cause is remanded to the trial court for further proceedings consistent with this opinion.
Judgment affirmed as modified and cause remanded,
Moyer, C.J., Sweeney, Locher, Holmes and H. Brown, JJ., concur. Douglas, J., dissents.The exceptions set out in DR 5-101(B)(l) through (4) are as follows:
“(1) If the testimony will reláte solely to an uncontested matter.
“(2) If the testimony will relate solely to a matter of formaliiy and there is no reason to believe that substantial evidence will be offered in opposition to the testimony.
“(3) If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or his firm to the client.
“(4) As to any matter, if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case.”