The California Supreme Court's decision in Comden v. Superior Court (1978) limited the ability of attorneys to testify for clients they represent at both contract negotiations and later at trial proceedings. The court's decision raises the question of whether this rule ought to be applied to labor arbitration. This article traces the history of the prohibition and analyzes the rationales underlying it.
The author concludes that the attorney-witness rule should not be applied to arbitration. He bases that decision on several arguments. First, the rule relates to trials, not arbitrations; arbitration proceedings are so different from trials that a rule covering arbitration would have to do so explicitly. Second, the rationales for the rule are inapplicable to arbitration. Third, the rule conflicts with the National Labor Relations Act's guarantee of freedom of choice in the selection of bargaining representatives. Thus, the author finds that arbitrators ought not apply the rule to attorneys who testify at arbitration hearings as to what transpired during contract negotiations or about other pre-arbitral matters.