Lawyers Should Not Give Evidence In Cases They Argue
Hughes v Moncton ( City) 2006 NBCA 83 states a cardinal rule of “lawyering”:
J.T. Robertson J.A.:
1 Once again this court must caution lawyers not to argue cases in which they have submitted affidavit evidence in support of a contentious issue. The common law rule is straightforward: a lawyer cannot act as both counsel and witness in the same proceeding. Moreover, the common law rule has found its way into the Law Society of New Brunswick’s “Code of Professional Conduct”: see Chapter 8, Commentary 6. This is not to deny that the law permits the giving of affidavit evidence with respect to formal or procedural matters, so long as those matters are and remain uncontested.
As to the relevant jurisprudence emanating from this Province see Walsh v. Nicholls, 273 N.B.R. (2d) 203 (N.B. C.A.), per Drapeau C.J.N.B., at para. 82, 2004 NBCA 59 (N.B. C.A.), Dill v. East Coast Lumber Ltd., 228 N.B.R. (2d) 184 (N.B. C.A.), Montreal Trust Co. of Canada v. OCCO Developments Ltd., 190 N.B.R. (2d) 386 (N.B. C.A.), Savard Inc. v. Stone Container Canada Inc./Emballages Stone (Canada) Inc., 192 N.B.R. (2d) 347 (N.B. C.A.), New Brunswick (Board of Management) v. Connors, 74 N.B.R. (2d) 367 (N.B. Q.B.), Léger v. Belliveau, 107 N.B.R. (2d) 383 (N.B. Q.B.), Savoie v. Savoie, 101 N.B.R. (2d) 431 (N.B. Q.B.), and New Brunswick Milk Dealers Assn. v. New Brunswick (Milk Marketing Board), 56 N.B.R. (2d) 413 (N.B. Q.B.).
