For obvious reasons, lawyers rarely testify at trial. The ethics rules normally prevent a lawyer from trying a case if she is “likely to be a necessary witness.” ABA Model Rule 3.7. And any lawyer’s testimony presents privilege waiver risks.
In Snow Covered Capital, LLC v. Fonfa, Case No. 2:22-cv-1181-CDS-BNW, 2024 U.S. Dist. LEXIS 122574 (D. Nev. July 12, 2024), plaintiff cited several non-Nevada cases in arguing that defendant waived her attorney-client privilege by naming three lawyers as fact witnesses (the opinion does not describe what issues were being tried, or the lawyers’ expected testimony). The court bluntly explained that Nevada courts “have not held that the mere act of calling an attorney to the stand waives privilege.” Id. at *10.
The court thus concluded that there would be no waiver unless “these attorneys testify as to matters that come within the attorney-client privilege.” Id. at *11. Next week’s Privilege Point describes a Delaware federal court decision issued six days later that involved a more subtle waiver issue.