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 99-03
Facts:
A lawyer in private practice is under contract to provide legal services to a county sheriff. The lawyer maintains a private office as well as an office within the sheriff's department. The sheriff has requested that the lawyer present evidence at preliminary hearings. The lawyer's duties at preliminary hearings will be to act solely as a witness testifying from the sheriff's files.
Question:
Is it permissible under the Rules of Professional Conduct for the lawyer to perform these duties?
Summary:
Under the facts presented, the lawyer is acting solely as a witness, which is not prohibited by the Rules of Professional Conduct. If the lawyer acts as both witness and sheriff's lawyer at a preliminary hearing, the conduct is prohibited by Rule 3.7 of the Rules of Professional Conduct, unless qualifying under one of the specific exceptions contained in this rule.
Opinion:
Under the facts of this inquiry, the attorney's duty at the preliminary hearing is limited to being a witness. The Rules of Professional Conduct do not prohibit an attorney from being a witness, provided that the attorney does not blend his role as attorney and witness.
Rule 3.7 of the Rules of Professional Conduct provides:
(a) 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;
(2) The testimony relates to the nature and value of legal services rendered in the case; or
(3) Disqualification of the lawyer would work substantial hardship on the client.
(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.
Although the lawyer's conduct does not violate Rule 3.7, it appears to the Committee that it would be prudent for a member of the sheriff's department other than the lawyer to testify at preliminary hearings to avoid confusion as to whether the lawyer is appearing as a witness, an advocate, or both.