Ethics Advisory Opinion 05-06
April 13, 2005
RULES 1.7, 1.9 and 3.7
March 18, 2005
Attorney represents a criminal Defendant concerning two separate incidents. Defendant has been charged with two counts of Kidnapping, two counts of Burglary in the First Degree, ABHAN, Misconduct in Office, and Pointing and Presenting a Firearm. Both alleged victims have made statements to Attorney that have made Attorney a necessary witness.
Attorney has advised Defendant, and Defendant is in the process of obtaining replacement counsel. However, because of the nature of Defendant’s charges, obtaining replacement counsel will require approximately $40,000 to $50,000. Attorney was representing Defendant pro bono.
1. Must Attorney withdraw as counsel for Defendant?
2. If Attorney is required to withdraw, may Attorney remain involved in Defendant’s case, assisting Defendant’s replacement counsel, so long as Attorney does not speak in open court in front of the jury, other than as a witness (i.e., may Attorney argue motions, investigate, consult with replacement counsel at counsel’s table during trial)?
3. If Attorney is required to withdraw, may Defendant’s replacement counsel be another member of Attorney’s firm?
1. Pursuant to Rule 3.7 of the South Carolina Rules of Professional Conduct, Attorney may be required to withdraw from representation.
2. Pursuant to Rule 3.7, except for participation in the trial of the case itself, Attorney may remain involved in the preparation of and pre-trial matters related to Defendant’s case.
3. Subject to the prohibitions of Rules 1.7 and 1.9, Rule 3.7 permits replacement counsel to be another member of Attorney’s firm.
The factual scenario described by this inquiry is addressed squarely by Rule 3.7(a) of the South Carolina Rules of Professional Conduct, South Carolina Supreme Court precedent, and prior opinions of this Committee. See, e.g., State v. Sanders, 341 S.C. 386, 534 S.E.2d 969 (2000) (holding, interpreting Rule 3.7, a criminal defendant has a qualified constitutional right to select defense counsel); S.C. Bar Ethics Adv. Op. # 04-08 (stating an attorney, who is likely to testify as a guardian ad litem, may not represent the ward during judicial proceedings); # 98-02 (same); # 90-27 (stating an attorney disqualified from handling the trial itself may continue to handle other pre-trial proceedings in which the attorney will not be a witness); # 90-05 (stating an attorney, who is not actually called as a trial witness, may subsequently handle the case on appeal).
In relevant part, Rule 3.7 provides: “A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where: (1) the testimony relates to an uncontested issue; . . . or (3) disqualification of the lawyer would work substantial hardship on the client.” 1 Although Attorney’s inquiry presents what appears, on its face, to be precisely the type of situation contemplated by Rule 3.7, before Attorney determines whether to voluntarily withdrawal from representing Defendant, we invite Attorney to review the Supreme Court’s opinion in Sanders, specifically addressing withdrawal of criminal defense counsel. Once Attorney reviews Sanders and the other relevant legal and ethical authority, Attorney should be able to make an informed decision regarding whether to withdrawal voluntarily. Because of the fact-specific and individualized nature of a Rule 3.7 withdrawal, the Committee offers no opinion regarding whether Attorney must withdraw.
Assuming Attorney eventually withdraws (whether by voluntary or involuntary means), Attorney may continue to participate in the preparation of, and pre-trial matters related to, Defendant’s case, as more fully outlined by this Committee’s prior opinion (# 90-27) and the annotations to Rule 3.7 in Robert M. Wilcox and Nathan M. Crystal, Annotated South Carolina Rules of Professional Conduct (2002 ed.). Cf. Rule 3.7(a) (stating “[a] lawyer shall not act as an advocate at a trial” (emphasis added)).
Finally, subject to the prohibitions of Rules 1.7 and 1.9, Rule 3.7 permits Defendant’s replacement counsel to be another member of Attorney’s firm. The normal imputed disqualification of Rule 1.10 does not apply to the Rule 3.7 advocate-witness withdrawal. However, if replacement counsel is another member of Attorney’s firm, we encourage replacement counsel to review thoroughly Rules 1.7 and 1.9 before undertaking Defendant’s representation.
1 Based on the facts of this inquiry, subitem “(2)” of the subsection “(a)” (relating to an attorney’s fees for services) clearly does not apply, and therefore, is not addressed in this opinion.