concurring in part and dissenting in part.
Were I not convinced that Mr. Garratt should have foreseen that he would be called as a witness very shortly after the 1976 telephone conversation, I believe I might have voted to reverse the District Court outright on the basis that a convincing case of substantial hardship has been made out, bringing the case within the exception of DR 5-101(B)(4). I agree with the majority, however, that under the circumstances Mr. Garratt should be precluded from participating in the activities at trial.
I disagree with that part of the majority opinion which appears, albeit ambiguously, to preclude Mr. Garratt from participating in phases of the litigation other than the trial itself. Judge Gilmore recognized that disqualification motions require a balancing of “the potential prejudice to the parties, the profession, or the judicial process so as to apply DR 5-101 and 5-102 within the limits of their underlying rationales.” General Mill Supply Co., et al. v. SCA Services, *717et al., C79-73053, mem. op. at 9 (E.D.Mich. January 28, 1981). The policies for application of the rules were considered by the Second Circuit in International Electronics Corp. v. Flanzer, 527 F.2d 1288, 1294 (2d Cir.1975):
The ultimate justification for the disqualification rule, in [Professor] Wigmore’s view, was that the public might think that the lawyer is distorting the truth for the sake of his client. Another argument for disqualification is that the lawyer-witness will vouch for his own credibility in summing up to the jury—a powerful means of support for his own credibility. The argument that such tactic is to the detriment of his client obviously defeats itself. But the argument that it is unfair to the opponent has some merit. It is difficult, indeed, to cross-examine a witness who is also an adversary counsel concerning matters of fact, and more particularly, on matters impeaching his credibility, within the bounds of propriety and courtesy owed to professional colleagues,
(emphasis added). Accord, ABA Comm, on Ethics and Professional Responsibility, Formal Op. No. 339 (1975).
I conclude that Judge Boyle’s last decision, insofar as it dealt with pretrial activities, was a most sensitive and practical solution to a very difficult problem for Mr. Garratt’s client.1 Because Mr. Garratt would not be acting as an advocate during the trial, he would not be placed in a position of arguing his credibility in his summation to a jury. Opposing counsel would be free to cross-examine him vigorously and the jury evaluation of whether Garratt was distorting the truth would be no different from their consideration of the veracity of any witness. As Judge Boyle indicated in her opinion, the trial judge retains the power to regulate discovery to minimize Mr. Garratt’s overt involvement in the case.
It is implicit in the employment of a balancing test that disposition of disqualification motions is a matter of judicial discretion. While the client’s consent to representation by an attorney who will be a witness certainly cannot act as a per se bar to disqualification, the client’s judgment concerning who will most vigorously represent his interests must normally be given great deference in a judicial system of truth-finding based upon advocacy. Judge Boyle’s resolution of the dilemma, in my opinion, best respects these rights without doing violence to the rule. Accord, Norell v. Federated Dept. Stores Inc., 450 F.Supp. 127, 130-31 (S.D.N.Y.1978).
With respect to whether an evidentiary hearing is required, I concur in the majority’s holding that it is not. The record has been satisfactorily developed for a decision as it now stands. I agree that Melamed’s requirements in that regard have been adequately met. I do not read Melamed I as invariably requiring a full-blown evidentiary hearing. Finally, I do not share the majority’s apprehension that any further hearing would be a “mudslinging” contest, and certainly that factor should not have any bearing on whether such a hearing should or should not be held. The attorneys remain at all times bound in their conduct to the rules of professional conduct and can be expected to abide by them. The trial *718judge is exceptionally seasoned, and I have complete confidence in his ability to maintain an orderly court in all events. I also find myself unable to join the majority opinion in its characterization of the respective reputations of the law firms or lawyers involved in this dispute nor in any language which can be construed to comment on the underlying merits of the lawsuit itself.
. While the issue of disqualification of Mr. Garratt’s present firm is not before us in this appeal, it is interesting to note that Judge Boyle would also have permitted participation by Mr. Garratt’s partners in the trial. The proposed Model Rules of Professional Conduct adopt a similar approach. Rule 3.7(b) provides:
A lawyer may act as advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 [conflict between clients or with lawyer’s own interest] or Rule 1.9 [conflict between present client and past client].
ABA Model Rules of Professional Conduct (1982). Another change is included in rule 3.7(a)(3), which allows an attorney to remain as trial counsel where there is a substantial hardship even without a showing of “distinctive value,” which is a requirement of DR 5-101(B)(4).
While not as yet adopted, the proposed rules offer some important guidance as to how courts may handle such issues in the future. The changes in rule 3.7 appear, in my opinion at least, to be consistent with a greater recognition of the importance of the client’s own judgment concerning his choice of counsel to represent him.