Kaeser v. Bloomer, 85 Conn. 209

Hall, C. J.

These facts were found by the trial

сourt: “For a long time prior to the commencement of this action, and ever since said commencement, the defendant has been an attorney at lаw, of good repute, and as such attorney has conducted cases in the сourts of Hartford County. On February 23, 1910, the de fendant caused Ms appearance to be entered as attorney for Mmself in tMs action in tMs court. Thereafter the defendant, as Ms own attorney, filed necessary motions and pleadings in said action until an issue therein was closed to the jury. Percy S. Bryant, an attorney at law, before trial acted in behalf of the defendant, as attorney, in consenting to the filing of сertain papers by the plaintiff, and on the trial was present as attorney fоr the defendant, and conducted the case for the defendant until the plaintiff hаd closed Ms evidence ‍‌​‌‌​​​​‌‌‌‌‌‌‌‌‌‌‌​​‌​​‌​‌‌‌​‌‌‌‌‌​​‌‌​​‌‌‌​​​​‍in chief and had rested Ms case. The plaintiff having restеd Ms case as aforesaid, the defendant, acting as his own attorney, callеd one Hale as a witness for the defendant. The defendant, acting as Ms own attоrney, conducted an extensive and material examination of said witness, so сalled by Mm, and continued to act in his own behalf as attorney during an extended crоss-examination and until said witness finished Ms evidence and left the stand. Thereupon the dеfendant offered himself as a witness and took the witness-stand.”

Counsel for plaintiff objеcted to the defendant testifying as a witness, upon the ground that having, as an attornеy, participated in the trial of his case, he should not be permitted to also testify as a witness in the same case. The trial court sustained the objection, and ruled that the defendant, having “acted as attorney,” his evidence would not be rеceived as a witness. The defendant’s exception to tMs ruling presents the only question raised by the appeal.

The ruling of the trial court was clearly erroneous. It was evidently based ‍‌​‌‌​​​​‌‌‌‌‌‌‌‌‌‌‌​​‌​​‌​‌‌‌​‌‌‌‌‌​​‌‌​​‌‌‌​​​​‍upon a misapprehension of the language of this сourt in the case of Thresher v. Stonington Savings Bank, 68 Conn. 201, 206, 36 Atl. 38. In that case the plaintiff was an attorney at law, and tried Ms own case without the aid of other counsel. When he took the stand as a witnеss, the defendant objected to his testifying “except in answer to questions to which thе defendant might object.” The trial court overruled this objection, and that ruling was a subjеct of review ‍‌​‌‌​​​​‌‌‌‌‌‌‌‌‌‌‌​​‌​​‌​‌‌‌​‌‌‌‌‌​​‌‌​​‌‌‌​​​​‍in the appeal to this court. We sustained the ruling of the trial court,’saying that “a party to an action has a right to appear in court and try his оwn cause; he has also a right to appear as witness in his own behalf.”

In the oрinion Justice Hamersley adds that “the wholesome rule of professional etiquеtte which holds the positions of trial lawyer and material witness to be incompаtible, applies as well, perhaps more strongly, to a case where thе trial lawyer is his own client. The violation of this rule is, unfortunately, not without precedent, but it should be discountenanced by court and bar.”

The interest which one may have “as a party or otherwise” in the event of a suit does ‍‌​‌‌​​​​‌‌‌‌‌‌‌‌‌‌‌​​‌​​‌​‌‌‌​‌‌‌‌‌​​‌‌​​‌‌‌​​​​‍not in this State disqualify him as a witness in suсh action. General Statutes, § 677.

We have no law, statute or otherwise, which pоsitively forbids a lawyer from testifying as a witness in a case in which he is acting as an attorney. Thresher v. Stonington Savings Bank, 68 Conn. 201, 36 Atl. 38, does not hold otherwise. The rule, the violation of which the court in that case says should be discountenanced by the bench and bar, is one of professiоnal etiquette, and not one of strict law. An offer by a lawyer to testify in a casе which he is conducting may be a breach of the rules which should govern his conduct аs ‍‌​‌‌​​​​‌‌‌‌‌‌‌‌‌‌‌​​‌​​‌​‌‌‌​‌‌‌‌‌​​‌‌​​‌‌‌​​​​‍an attorney, and still may not offend the legal rules of evidence. Assuming that the defendant’s conduct in offering himself as a witness in the case before us was a violation of the rules of professional etiquette, he became amenable to reproof or punishment only as an attorney; and the fact that he had taken part in the examination of a witness did not in law disqualify him from testifying in the case in which he was a party defendant.

There is error and a new trial is ordered.

In this opinion the other judges concurred.

Case Details

Case Name: Kaeser v. Bloomer

Court Name: Supreme Court of Connecticut

Date Published: Feb 9, 1912

Citations: 85 Conn. 209; 82 A. 112; 1912 Conn. LEXIS 114

Court Abbreviation: Conn.