UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.
Ethics Advisory Opinion 90-27
Lawyers A and B represent defendant D in a criminal matter.
The testimony of witness W on a critical point at a pre-trial hearing differs radically from an earlier statement made by W to A and B. Only A and B were present when W made the earlier statement. Lawyer A wants to call Lawyer B as a witness at trial to impeach the statement of Witness W.
Questions:
What is the proper procedure to be followed by a lawyer when a witness, without warning to the lawyer, contradicts a statement previously made to the lawyer and the lawyer is the only witness to the earlier statement?
Must a lawyer withdraw as counsel if the lawyer will testify as a witness on behalf of the client of such a situation?
Would the result differ if the lawyer/witness is sole counsel for the criminal defendant?
Summary:
Unless disqualification would cause "substantial hardship" to the client, a lawyer may not continue to serve as counsel when the lawyer is likely to be a necessary witness to impeach the testimony of another witness. It does not matter that the lawyer is sole counsel for the client, except insofar as that fact may affect a showing of substantial hardship to the client.
Opinion:
Disqualification of a lawyer as an advocate at trial is required when the lawyer is likely to be a necessary witness in a contested matter, unless a sufficiently substantial hardship to the client would result from withdrawal. The lawyer should avoid the situation presented by interviewing witnesses in the presence of a third person who could testify if necessary. While disqualified as counsel at trial, however, the lawyer may continue to assist in the representation to a limited extent, including participation in pre-trial proceedings, so long as the matter on which the lawyer is to testify is not at issue in the proceeding.
Rule 3.7 of the South Carolina Rules of Professional Conduct provides that a lawyer "shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where...(3) Disqualification of the lawyer would work substantial hardship on the client." The rule applies both to criminal and civil representation. Under the facts presented, it appears that Lawyer A has determined that it is likely that the testimony of Lawyer B will be necessary to defend client D properly. In that case, Lawyer B must withdraw as an advocate at trial for D, unless "substantial hardship" can be shown. Although not formally adopted in South Carolina, Standard 4-4.3(d) of the ABA Standards Relating to the Administration of Criminal Justice recognizes this outcome and advises the lawyer to avoid precisely the dilemma presented:
Unless the lawyer for the accused is prepared to forego impeachment of a witness by the lawyer's own testimony as to what the witness stated in an interview or to seek leave to withdraw from the case in order to present such impeaching testimony, the lawyer should avoid interviewing a prospective witness except in the presence of a third person.
The requirement that the lawyer withdraw when it is likely the lawyer will be a necessary witness is not changed simply by the fact that the lawyer is sole counsel for the defendant. However, in determining whether withdrawal would work a substantial hardship on the client, it is appropriate to consider the extent to which disqualification would subject the client to expense and delay, see ABA Formal Op. 339 (Jan. 31, 1975), and whether the likelihood of disqualification was foreseeable. See Comment, S.C. Rule of Prof. Conduct 3.7. Therefore, if the need for the lawyer to testify does not become apparent until late in the representation, the fact that defendant has only one lawyer might possibly be relevant to the determination of substantial hardship, if withdrawal of the sole lawyer at the late date is likely to cause the client to suffer significant cost or delay.
Even if Lawyer B must withdraw from active participation at trial under Rule 3.7, however, B, with the informed consent of the client, can continue to assist other counsel in the preparation of the case. B also may participate in other pre-trial proceedings, if the matter upon which B will testify is not at issue in such proceedings. ABA Inf. Op. 89-1529 (Oct. 20, 1989). Lawyer A also may continue to represent D if A is not likely to be a necessary witness, so long as no other cause for withdrawal exists. Even if A and B are members of the same firm, A is not automatically disqualified by virtue of the association with B. See Rule 3.7(b).