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 90-32
An attorney represents a plaintiff who originally contacted him to advise him that his car had been hit by another car. The attorney investigated and discovered the car was owned by ABC Rentals. Since the attorney had done business with the company before and knew the manager, he called the manager and had a conversation with him concerning the accident. Subsequently, the insurance company insuring ABC and the driver of the vehicle denied any liability for the accident and further denied that the incident occurred. The attorney then brought suit for his client.
Questions:
1. Is the lawyer likely to be a necessary witness in the plaintiff's case versus ABC rental?
2. Even if the lawyer is a necessary witness, would disqualification of the attorney work substantial hardship on the claim?
Summary:
If the lawyer is a necessary witness, the lawyer must be disqualified unless such disqualification would work substantial hardship on his client.
Opinion:
Rule 3.7 of the South Carolina Rules of Professional Conduct sets forth the guidelines for a lawyer to avoid mixing advocacy and testimony. A lawyer may not act as advocate if the lawyer is likely to be a necessary witness. Whether the lawyer is a necessary witness is a factual, rather than ethical, issue.
If the lawyer received information which would make him a necessary witness, Rule 3.7 provides three exceptions to the prohibition against testifying advocates. The third exception allows an advocate to testify if disqualification of the lawyer would work substantial hardship in the client (Rule 3.7 (a) (3). Hence, if the lawyer is a necessary witness, unless the attorney could show that disqualification would work a substantial hardship on the client, the lawyer could not continue to represent the client.