The witness-advocate ethics rule sometimes prevents lawyers from trying a case if they are necessary fact witnesses. Such an admittedly unusual scenario can also implicate privilege and work product issues during pretrial discovery.
In Buechler v. Jones, No. 4:24-CV-04155-RAL, 2025 U.S. Dist. LEXIS 154515 (D.S.D. Aug. 7, 2025), a 19-year-old driver allegedly caused an accident, after which his mother (a lawyer) arrived on the scene and transported him home, returning the next day to take pictures of the accident scene. After the predictable squabbling over plaintiffs’ efforts to conduct discovery of the defendant’s mother, the court allowed plaintiffs to ask about “the mother’s own observations of the scene as a witness” when she picked up her son and when she returned the next day; and “the circumstances surrounding” her communications with her son (but not the content) — stating that “the presence of third persons … might suggest waiver of the privilege.” Id. at *12-13.
Although it may not have changed the court’s understandable conclusions, (1) the court failed to address the separate work product doctrine protection, perhaps because defendant didn’t raise it; and (2) the court erred in describing the technical implications of third persons’ presence — which would not have waived the privilege protection but instead would have aborted it.
