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Assuming, arguendo , that Engel would have made the above testimony and that the district court erred in excluding the line of questioning, any resulting error was harmless. First, for the same reasons outlined above, the testimony, while related to a central issue, was not central in and of itself. Ames and Levy stated that they saw no difference between "recording costs" and "recording expenses." Additional testimony debated the total amount of fees charged as well as many other aspects of the Scholz Statement. As for the potential prejudicial effect, the testimony Engel was able to give, quoted above, made it clear that his earlier statement was directed to "recording costs," not "recording expenses," an argument he reiterated in his closing, mitigating the potential effect of the apparent inconsistency. Additionally, during his first day on the stand Engel stated, in response to questioning about the actual charging of recording costs or expenses by a group or a performing artist, that although he reviews accountings after the fact, he has never reviewed an accounting like that provided in the Scholz Statement. He testified that "[t]his is a special case. I don't remember any accounting that really falls into this category. This is not a standard contract." (Day 7, page 81). While this testimony does not go directly to his prior statements, it does emphasize that the FMA is not a standard contract, implying that his and others' statements about other contracts may not be pertinent. Weighing the above in the light of the record as a whole, see Doty , 908 F.2d at 1057, we cannot say that the court's evidentiary ruling excluded evidence that was either central or prejudicial in its effect such that it could have swayed the factfinders' decision. Thus, even if the court erred, it did not rise to the level of harmful error. See Lubanski , 929 F.2d at 46.
C. The Overall Impact of Engel's Testimony
Of course, it is not just the impact of the information elicited from Engel that we must evaluate under the harmless error standard. We must also address the potential prejudicial effect on the jury of seeing Engel, Scholz' counsel, take the stand, dispute with the court and opposing counsel over his testimony, and finally make a statement, apparently unwillingly, against his client's interest -- a statement against which, he argues, he had to take an apparently inconsistent position in his closing argument. There is no doubt in our mind that this had some prejudicial effect on the jury. Nonetheless, we cannot say with "'fair assurance . . . that the judgment was [] substantially swayed by the error.'" Espeaignnette , 43 F.3d at 9 (quoting Lubanski , 929 F.2d at 46). The jury sat through fifteen days of trial, received substantial and often cumulative testimony on all points, [13]
in all my years, I have never seen a case in which the same matters have come up so many times. The accumulation of evidence in this case is really burdensome. . . . I'm telling you, I've told you many times, I don't know how much longer I can take cumulative evidence.
(Day 13, pages 89-90).
and heard an hour of closing argument from each party's counsel. We find it highly unlikely that the verdict could have been the result of Engel's questioning and the attendant commentary. Cf. United States v. Rosales , 19 F.3d 763, 768 (1st Cir. 1994) (holding that prosecutor's inappropriate argument in closing did not warrant new trial under harmless error standard).
There are significant reasons why trial counsel should not be able to testify at trial, no matter for which party counsel testifies.
The principal ethical considerations to a lawyer testifying on behalf of his client regarding contested issues are that the client's case will "be presented through the testimony of an obviously interested witness who is subject to impeachment on that account; and that the advocate is, in effect, put in the unseemly position of arguing his own credibility."
Siguel v. Allstate Life Ins. Co. , 141 F.R.D. 393, 396 (D. Mass. 1992) (quoting ABA Comm. on Ethics and Professional Responsibility, Formal Op. 339 (1975)). "Combining the roles of advocate and witness can prejudice the opposing party and can involve a conflict of interest between lawyer and client." Model Rules of Professional Conduct Rule 3.7 cmt. 1. When the attorney is called to the stand by his client's opponent, the concerns are just as substantial, if not more. See Siguel , 141 F.R.D. at 396 ("Although there are degrees of adverse testimony, there are few, if any, situations that justify acceptance or continued employment in this circumstance."). Accordingly, Model Rule of Professional Conduct 3.7 states that a lawyer shall not act as advocate at a trial where he or she is likely to be a necessary witness, except, among other things, where the testimony relates to an uncontested issue or disqualification of the attorney would work substantial hardship on the client. Finally, there is also the danger that the performance of the dual roles of counsel and witness will create confusion on the jury's part as to when the attorney is speaking as a witness, "raising the possibility of the trier according testimonial credit to the prosecutor's closing argument," United States v. Johnston , 690 F.2d 638, 643 (7th Cir. 1982) -- or, conversely, weighing the testimony as if it were argument.
All these concerns clearly come into play at a more heightened level when trial counsel acts as an expert. However, when counsel is asked to play that role for the length of one question in a fifteen-day trial, even acknowledging the impact of the attendant discussion with the court, attempts to examine him on the testimony and references to it in the closing arguments, we cannot hold that it rises to the level of harmful error affecting a party's substantial right where the testimony is cumulative and not a central part of the case. Any prejudice that resulted from the objected-to portions of Engel's testimony did not rise to the level of harmful error.
D. Denial of Pre-Trial Motion for Continuance
Prior to trial, Ahern filed two motions seeking to disqualify Engel as Scholz' counsel on the grounds that Engel was a percipient witness who ought to testify on Scholz' behalf. Scholz opposed, and the district court refused, both motions. When the parties presented their lists of witnesses, Engel appeared on both parties' lists. Approximately six weeks before trial was scheduled to begin, Ahern filed a third motion to disqualify. This time Scholz agreed to withdraw his counsel provided that he was given time to find new lead counsel. In his memorandum in support of his motion, Scholz stated that he "now [felt] he must retain new trial counsel in this matter, to avoid the risk of a disqualification of his counsel just prior to the trial, and for other reasons." (Scholz' Memorandum in Support of His Motion to Continue Trial, page 3). The district court, however, denied both Ahern's Renewed Motion to Disqualify and Scholz' Motion to Continue Trial.
As discussed above, Scholz maintains in his brief on appeal that the trial court erred by allowing Ahern to use Engel as his own expert against Scholz. One of the four contentions he uses to support this position is that
the trial court itself placed Scholz in his precarious predicament when it refused to grant the last motion by Ahern to disqualify Engel . . . . The failure to grant the continuance under these circumstances, which resulted in severe prejudice to Scholz, is, itself, reversible error.
(Appellant's Brief, page 34). In support of his statement, Scholz cites several cases weighing district court decisions on motions for continuances. See Lowe v. City of East Chicago , 897 F.2d 272, 274-75 (7th Cir. 1990) (concluding that it was an abuse of discretion to deny motion for continuance where plaintiff was faced with choice between voluntary dismissal and going to trial although his attorney was not ready for trial); United States v. Flynt , 756 F.2d 1352, 1358-59 (9th Cir.) (finding that district court abused its discretion in denying motion for continuance where doing so effectively foreclosed defendant from presenting a defense), amended , 764 F.2d 675 (9th Cir. 1985). We need not prolong our discussion. Simply put, we do not feel the district court abused its discretion in denying the motion for a continuance. Even if it did, the error was harmless.
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