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 93-20
Plaintiff's attorney in a consolidated action involving a number of cases, has received a proposal from defendant's counsel to settle with the plaintiff conditioned upon an agreement that the plaintiff "not voluntarily testify" in the remaining consolidated cases. The plaintiff may be considered a material witness, is a listed witness, and is expected to testify in the remaining actions.
Question:
What ethical considerations should plaintiff's counsel consider in advising his client to accept a settlement agreement conditioned upon the client agreeing to not voluntarily testify in the remaining actions?
Summary:
The answer to this depends on what the plaintiff's attorney believes or determines the defendant's attorney to mean by "not voluntarily testify." If the plaintiff's lawyer believes that the defendant's lawyer is asking the plaintiff to refrain from voluntarily giving relevant information to another party, then it would be a violation of the Rules of Professional Conduct for the plaintiff's attorney to advise his client to "not voluntarily testify" in the remaining actions under the facts of this inquiry.
Opinion:
Rule 3.4(f) prohibits a lawyer from requesting a person other than a client to refrain from voluntarily giving information to another party unless the person being requested not to testify is a relative or employee of that lawyer's client. Consequently, if the defendant's lawyer is requesting that the plaintiff withhold relevant information from another party, it is a violation for defense counsel in this case to ask the plaintiff's counsel to request that his client not testify. (It is assumed, since not stated, that the plaintiff is neither a relative nor an employee of the defendant.) Rule 8.4(a) prohibits a lawyer from knowingly assisting another to violate any Rule. By recommending to his client an improper request of defense counsel, plaintiff's counsel would be assisting the defense counsel in violating Rule 3.4(f), since that lawyer should not ask one who is not a relative or employee of his client to refrain from voluntarily giving relevant information. If, on the other hand, the plaintiff has already given all relevant information in the case to the other parties and the defense counsel is merely requesting that the plaintiff not volunteer to testify in the other cases, such a request is not prohibited by any of the Rules of Professional Conduct, and the plaintiff's lawyer would not be participating in any prohibited conduct.
Consequently, the plaintiff's lawyer must decide, and, if necessary, inquire to ascertain exactly what is being requested by the defense counsel. If the defense lawyer is attempting to prevent the plaintiff from providing relevant information, the request should not be recommended to the client. If defense counsel is simply requesting that the plaintiff not volunteer to testify, this request, useless as it and any return promise may be, is not improper. The plaintiff should be kept informed of all communications between counsel.