Arthur v. Zearley

Ernie E. Wright, Special Associate Justice,

concurring in part, dissenting in part. I concur in the Majority opinion reversing the judgment of the trial court certifying this case as a class action; however, I disagree with its holding that the trial court abused its discretion in allowing Mr. Hicks, an attorney for the appellees, to testify at the pretrial proceeding on the procedural issue of whether the case should be certified as a class action. The word “pretrial” suggests proceedings preliminary to the trial itself, which normally refers to a trial on the merits.

Mr. Hicks’s testimony was not before the jury in a trial of the case on its merits, as it was offered and received by the trial court only on the procedural issue. I believe an appropriate application of Rule 3.7 is to construe it as applicable to testimony at trial of a case on its merits or incident to final disposition of the case, such as in summary judgment. There is substantial authority supporting this view. See Kapco Mfg. v. C & O Enter., 637 F. Supp. 1231 (N.D. Ill. 1985); Mobley v. Harmon, 313 Ark. 361, 854 S.W.2d 348 (1993); Parker v. State, 271 Ark. 84, 607 S.W.2d 378 (1980); and Henry v. Eberhard, 309 Ark. 336, 832 S.W.2d 467 (1992).

In Mentor Lagoons, Inc. v. Rubin, 510 N.E.2d 379 (Ohio 1987), the Ohio Supreme Court reversed the trial court for refusing to allow the attorney for a party to testify on the ground that it might be in violation of the Code of Professional Responsibility. The court stated that the rule does not go to the competency of the testimony and that the trial judge must determine the competency of the testimony without reference to the disciplinary rule.

The federal courts, in dealing with the model rule, look with disfavor upon an attorney testifying on behalf of his client; however, they do not construe the rule as going to the competency of the testimony. See 9 A.L.R. Fed. 500-525. In the case of United States v. Morris, 714 F.2d 669 (7th Cir. 1983), the Seventh Circuit held that the district court did not abuse its discretion in allowing the attorney for the defendant to testify at a pretrial suppression hearing.

The trial judge has considerable discretion regarding the admission of evidence, and, on appeal, when the appellant fails to establish that the attorney’s testimony prejudiced him, the admission of the testimony is not a ground for reversal. In Re Marriage of Lee, 481 N.E.2d 1045 (Ill. App. 1 Dist. 1985). In Arkansas, the rule on appellate review is in accord, as this court does not reverse absent a showing of prejudice. Peters v. Pierce, 314 Ark. 8, 858 S.W.2d 680 (1993); Arkansas Public Service Comm’n v. Yelcot Tel. Co., 266 Ark. 365, 585 S.W.2d 362 (1979).

It is clear that the majority has concluded that the order certifying the class should be reversed on grounds other than Mr. Hicks’s testimony. It follows that the admission of the testimony is not properly included as a ground for reversal. While there may well be some question as to the propriety of attorney Hicks testifying, I do not view the action of the trial judge in allowing the testimony as an abuse of discretion or as any ground for reversal.