See also: ATTORNEY-CLIENT PRIVILEGE
ATTORNEYS’ FEES.

1.  As Witnesses

An attorney may testify in a trial even though he represents a party,{footnote}Universal Athletic Sales Co. v. American Gym, Recreational & Athletic Equip. Corp., 546 F.2d 530 (3d Cir. 1976), cert. denied, 430 U.S. 934 (1977); Waltzer v. Transidyne Gen. Corp., 697 F.2d 130 (6th Cir. 1983) (applying Michigan law).
See also COMPETENCY.{/footnote} although certain ethical duties arise in such situations where the testimony relates to more than ministerial matters.  It has also been held that once an attorney testifies he or she may not participate in closing argument.{footnote}  Bickford v. John E. Mitchell & Co., 595 F.2d 540 (10th Cir. 1979).{/footnote}  Of course, the attorney may not reveal client confidence in testifying unless the client consents.  See ATTORNEY-CLIENT PRIVILEGE.

4.  Admissions by an Attorney

Statements by a party-opponent’s attorney may be introduced against teh client as admissions if they were made within the scope of the attorney’semployment.{footnote}Oscanyan v. Arms Co., 103 U.S. 261, 263, 26 L. Ed. 539 (1880); United States v. GAF Corp., 928 F.2d 1253, 1259 (2d Cir. 1991); United States v. Valencia, 826 F.2d 169, 173-74 (2d Cir.  1987); United States v. McKeon, 738 F.2d 26, 27-34 (2d Cir. 1984) (holding an opening statement made by an attorney is admissible in a later lawsuit against his client); United States v. Margiotta, 662 F.2d 131, 142 (2d Cir. 1981), cert. denied, 461 U.S. 913 (1983); Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153 (3d Cir. 1993) (only statements directly related to management of litigation admissible); United States v. Martin, 773 F.2d 579, 583 (4th Cir. 1985) (statements by attorney to IRS auditor); United States v. Horton, 847 F.2d 313, 324 (6th Cir. 1988); Williams v. Union Carbide Corp., 790 F.2d 552, 555-56 (6th Cir. 1986), cert. denied, 479 U.S.  992 (1986); In re AOV Indus. Inc., 62 B.R. 968, 977 (D.C. 1986) (statement in letter); Daily v. Societe Generale, 915 F. Supp. 1315 (S.D.N.Y. 1996) (statements by general counsel admissible against client); United States v. D.K.G. Appaloosas, Inc., 630 F. Supp. 1540, 1564 (E.D. Tex. 1986), aff’d, 829 F.2d 532 (5th Cir. 1987), cert. denied sub nom., One 1984 Lincoln Mark VII v. United States, 485 U.S. 976 (1988).
Noel v. Roberts, 449 S.W.2d 572 (Mo. 1970) (statement in letter by plaintiff’s attorney that the defendant’s employee, not the defendant, assaulted plaintiff); State v. Stiltner, 377 P.2d 252 (Wash. 1962), cert. denied, 380 U.S. 924 (1965).
Cleary, McCormick on Evidence § 278, at 791 (3rd ed. 1984).
But see Hogenson v. Service Armament Co., 461 P.2d 311 (Wash. 1969) (statement by plaintiff’s attorney in letter of claim to defendant as to how the plaintiff’s injury occurred inadmissible).
CHECK Wenner v. Gulf Oil Corp., 264 N.W.2d 374 (Minn. 1978){/footnote}  Statements held admissible include an acknowledgement of the client’s indebtedness.{footnote}Suntken v. Suntken, 272 N.W. 132 (Iowa 1937); Brown v. Hebb, 175 A. 602 (Md. 1934).
But see Kansas City v. Martin, 391 S.W.2d 608, 615 (Mo. Ct. App. 1965) (statement of plaintiff’s attorney in tort action that plaintiff liable for own hospital bills held inadmissible legal conclusion).{/footnote}  Legal conclusions, matters of law, and opinions expressed by attorneys have been held inadmissible against their clients.{footnote}Kansas City v. Martin, 391 S.W.2d 608, 615 (Mo. Ct. App. 1965) (statement of plaintiff’s attorney in tort action that plaintiff liable for own hospital bills held inadmissible legal conclusion); 7 C.J.S. Attorney and Client § 100, p. 922.{/footnote} It has also been held that improvident or erroneous statements or admissions resulting from unguarded expressions or mistake are not binding on the client.{footnote}Couch v. Landers, 316 S.W.2d 588 (Mo. 1958); 7 C.J.S. Attorney and Client § 100, p. 922.
But see State v. Worthen, 765 P.2d 839, 848 (Utah 1988) (prosecutor’s letter to judge admissible for defense even though later proven erroneous; accuracy was for jury to determine){/footnote}  Statements made in oral argument have been held inadmissible.{footnote}People v. Kinder, 122 Cal. App. 2d 457, 265 P.2d 24 (1954) ("The mere argument of counsel is not  evidence and is not admissible as such unless made as a factual admission formally made and entered in the course of a trial."); State v. Nichols, 236 Or. 521, 388 P.2d 739 (1964) (statements made by prosecutor in argument on motion to dismiss held inadmissible at trial).{/footnote}  See also ADMISSIONS; JUDICIAL ADMISSIONS.

Attorney’s Notes as Hearsay

An attorney’s notes of his interview with a client have been held improperly admitted as business records where the attorney is available to testify as to the substance of what the client told him.{footnote}United States v. Casoni, 950 F.2d 893, 913 (3d Cir. 1991).{/footnote}  Where the attorney is unable to recall the substance of the interview, it has been observed that interview notes may be used to refresh recollection.{footnote}United States v. Casoni, 950 F.2d 893, 914 (3d Cir. 1991)(dictum).{/footnote}

Witness’ Consultation with Attorney

It has been held proper to show that a witness has consulted with attorneys regarding the case at bar, in order to show that the witness may have prepared his testimony in advance with care.{footnote}Sweeney v. Westvaco Co., 926 F.2d 29 (1st Cir. 1991), cert. denied 502 U.S. 899, 112 S.Ct. 274, 116 L.Ed.2d 226 (suit for loss of consortium).{/footnote}

Criminal Defendant’s Request for an Attorney

Where the prosecution has introduced evidence that the defendant failed to cooperate with the police, evidence may be offered by the defense that the defendant had requested an attorney at the time.  Such evidence is admissible under FRE 803(3) as going to state of mind.{footnote}United States v .Terry, 702 F.2d 299 (2d Cir. ____)[S&R].
Check United States v. Williams, 556 F.2d 65 (C.A.D.C. 1977).{/footnote}