In re Marriage of Hipes, 2025 IL App (1st) 240601
Attorney-Witness Rule Bars Simultaneous Testimony and Advocacy
The Illinois Appellate Court affirmed attorney disqualification under Rules 3.7 and 1.7 when counsel testified and had personal interests in the case. Courts applied the advocate-witness rule strictly. Attorneys must avoid simultaneous witness testimony and advocacy to prevent mandatory disqualification and sanctions.
Facts
Caroline Hipes petitioned for dissolution of marriage against Diego Lozano, who was represented by his mother, attorney Maria Alma Alvarado. The trial court disqualified Alvarado for violating the advocate-witness rule after she testified at hearings while simultaneously representing Lozano, and imposed sanctions when she filed appearances after disqualification.
Issue
Whether an attorney must be disqualified under the advocate-witness rule and conflict of interest provisions when she testifies while representing a party and has personal interests in the litigation outcome.
Holding
The court affirmed Alvarado's disqualification under Rules 3.7 and 1.7. Rule 3.7 applied because she had already testified and would likely be a necessary witness in future proceedings, creating an impermissible role conflict. Rule 1.7 applied because her personal interests, including guaranteeing Lozano's fees, materially limited her representation.
Key Reasoning
- Rule 3.7 (advocate-witness rule) mandates disqualification when an attorney has testified and is likely to be a necessary witness in future proceedings
- Rule 1.7 requires disqualification when attorney's personal interests (fee guarantees, first-person advocacy) could materially limit client representation
- Post-disqualification appearances violate court orders and subject both attorney and client to IMDMA sanctions
- Fee awards must be limited to assets reasonably available for collection, not beyond party's ability to pay
Practical Impact
For Petitioners
Can seek attorney disqualification when opposing counsel has testified or has personal financial interests that create conflicts, potentially disrupting opponent's representation
For Respondents
Must carefully avoid having attorney serve as witness while providing representation; consider separate counsel for testimony and advocacy roles to prevent disqualification
When This Applies
Applies when attorney has actually testified or has concrete personal interests; distinguishable from mere potential witness situations or standard attorney-client fee arrangements
Statutes Cited
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