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Case 1:20-cr-00330-PAE Document 224 Filed 04/20/21 Page14of17 same tribunal. See Erick G. Luna, Avoiding A “Carnival Atmosphere”: Trial Court Discretion and the Advocate—Witness Rule, 18 Whittier L.Rev. 447, 451 (1997). Among the multitude of rationales for the rule, rarely, if ever, will a lawyer be able to effectively serve as an advocate and give testimony: A lawyer who intermingles the functions of advocate and witness diminishes his effectiveness in both roles. The client's case is subject to the criticism that it is being presented through the testimony of an obviously interested witness who on that account is subject to impeachment, and, of equal importance, the lawyer is placed in the unseemly position of arguing his own credibility to the jury. Williams v. Dist. Ct., El Paso Cty., 700 P.2d 549, 553 (Colo. 1985).° Counsel for Ms. Maxwell (“Colorado Counsel”) have direct, relevant, testimony applicable to the facts and circumstances surrounding the allegations in Counts Five and Six, the questions, the objections, and the lack of materiality of these questions. Testimony from Colorado Counsel would likely include their knowledge about the many false statements made by Giuffre and the actions of her lawyers including discovery abuses. But operating in a dual capacity, lawyer and witness, would create confusion, subject Ms. Maxwell’s lawyers to cross- examination, and potentially constitute ineffective assistance of counsel. Moreover, courts in this Circuit do not allow attorneys to function in this dual role, even if the defendant is willing. See United States v. Cunningham, 672 F.2d 1064, 1074 (2d Cir. 1982) (disqualification of trial counsel “required” as a result of “their participation in the events underlying” one of the charges); United States v. Gotti, 771 F. Supp. 552, 565 (E.D.N.Y. 1991) (disqualifying trial counsel and noting that “[i]t is difficult to comprehend how |the lawyers] could present a defense against this charge without becoming unsworn witnesses”). Here, the government suggests that ®° Drafters of the ABA Model Rules recommend similar rationales for the rule; but the drafters also mention the opposing party's interest, noting that combining the roles of advocate and witness can prejudice the opposing party as well as involve a conflict of interest between the lawyer and client. See Annotated Model Rules of Prof'l Conduct, R. 3.7 cmt. 1. 10 DOJ-OGR-00003911