In a recent letter ruling, the Court of Chancery deferred any decision on whether or not there was a violation of Rule 3.7(a) of the Delaware Lawyers’ Rules of Professional Conduct. In Re Straight Path Communications Inc. S’holder Litig., C.A. No. 2017-0486-VCG (Del. Ch. July 12, 2021).
Rule 3.7 generally prohibits a lawyer from simultaneously appearing as a trial advocate and as a witness, but Rule 3.7(a), when used as a sword, is problematic and disfavored.
Although the court explains what must be demonstrated in order to successfully apply the rule to prevent a lawyer from being both an advocate and a witness in the same case, the court deferred decision because the issue had not been properly “teed-up.”
Moreover, the court acknowledged a principle previously made clear by the Delaware Supreme Court, that only the Delaware Supreme Court has the authority to enforce the Rules of Professional Conduct, with a limited exception.
The Court of Chancery did not decide whether that limited exception applied to the facts of this case, and declined to determine whether or not a violation of ethical precepts affected the ability of the trial court to do justice. Such a finding would allow the trial court to enforce the Rules of Professional Conduct as an exception to the Delaware Supreme Court’s exclusive jurisdiction to rule on that issue.