Colorado’s second-highest court clarified on Thursday that the rule generally prohibiting lawyers from also serving as witnesses at trial does not apply only to jury trials.

Under Colorado’s rules of professional conduct, an attorney cannot litigate a case when the lawyer is likely to be a necessary witness “at trial.” There are limited exceptions, including when the lawyer is testifying to an undisputed issue or their disqualification would be a substantial hardship for their client.

Attorney Patrick Og O’Malley, who represented Good Life Colorado, LLC, argued he should not have been disqualified from representing the company in which he was also co-owner and president because, among other things, there was to be no jury trial. But a three-judge panel of the Court of Appeals disagreed that the rule was as narrow as O’Malley claimed.

“Significantly, the rule refers to ‘a trial’ and not ‘a jury trial’,” pointed out Judge Lino S. Lipinsky de Orlov in the Jan. 23 opinion.

The case in question involved a marijuana business dispute between Good Life Colorado and WLCO, LLC. WLCO moved to disqualify O’Malley from representing Good Life Colorado, alleging he remained active in the company, only recently transferred his ownership stake to his wife and would be the primary witness to testify about Good Life Colorado’s business dealings.

After a hearing, Boulder County District Court Judge Dea M. Lindsay agreed O’Malley could not continue as the plaintiff’s lawyer, as his testimony would be “critical to establishing the outcome of the case.” Further, she did not believe the company’s financial hardship in hiring another lawyer was a reason to keep O’Malley on the case.

“The Court finds that an attorney who accepts employment in contemplated litigation when it is obvious that he ought to be called as a witness cannot claim that his disqualification is a hardship,” Lindsay wrote in September 2023.

Instead of withdrawing, O’Malley continued to submit filings in the case. Lindsay repeatedly rejected his motions until WLCO requested she hold O’Malley in contempt. Following another hearing, Lindsay wrote that O’Malley “made a willing choice” not to follow her orders because he believed they were unlawful. Lindsey found O’Malley in contempt, but by that time he had withdrawn.

She later dismissed the lawsuit.

O’Malley appealed on behalf of Good Life Colorado, raising several issues. The Court of Appeals once again noted O’Malley was representing a client he had been barred from representing and it asked him to explain himself. O’Malley responded the rule disqualifying him “never hints that it applies to appeals.” 

The appellate panel then removed O’Malley from the case by 2-1, with Judge Grant T. Sullivan dissenting. The panel warned the appeal would be dismissed unless another attorney took it over.

In the Court of Appeals’ opinion, Lipinsky observed O’Malley neglected to properly pursue several of his arguments against being disqualified. The only question legitimately on the table was whether the rule governing lawyer-witnesses applied to contexts other than jury trials.

Previously, O’Malley asserted the purpose of the rule was to avoid “jury confusion,” which would not be a problem in a trial to a judge. But Lipinsky pointed to several other reasons why it would be problematic for a lawyer to act as a witness in their case:

• Witness testimony is subject to challenge, so a lawyer would need to argue for his own credibility

• The opposing party would have difficulty telling when the lawyer is acting as a witness and when he is being an advocate

• An attorney may be compromised by his own involvement in the controversy

The facts presented to Lindsay showed “O’Malley was a necessary witness” and his disqualification “was solidly grounded in the facts,” wrote Lipinsky.

As for the argument that it would be a hardship for Good Life Colorado to pay a new lawyer, instead of being represented by someone personally involved with the company, Lipinsky wrote that those circumstances were not a reason to keep O’Malley on the case.

“A party cannot argue against disqualification of its counsel when the lawyer’s intimate ties to the client are both the reason for his disqualification and also the reason why the lawyer is providing the favorable financial terms,” he explained.

The case is Good Life Colorado, LLC v. WLCO, LLC.