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 99-05
Facts:
In a workers' compensation action, counsel for the statutory employer would like to notify state and federal taxing authorities of the time and place of the hearing at which a claimant who has not filed a tax return will testify to his earnings. Counsel hopes they will send a representative to attend the hearing. No witnesses or documents are under subpoena, because no returns were filed.
Question:
May counsel for the statutory employer notify the taxing authorities of the time and place of a hearing at which a claimant who has not filed a tax return is scheduled to testify to his earnings and his failure to file income tax returns?
Summary:
A lawyer for a statutory employer may not notify the taxing authorities of the time and place of a hearing at which a claimant who has not filed a tax return is scheduled to testify to his earnings and his failure to file income tax returns.
Opinion:
Requesting that a representative of the South Carolina Department of Revenue or the Internal Revenue Service be present at a hearing in which a claimant who has not filed a tax return must testify to his earnings to establish his damages is a trial tactic amounting to a threat to the claimant solely designed to obtain an advantage in the matter. It violates Rule 4.5, SCACR 407, which prohibits a lawyer from presenting, participating in presenting, or threatening to present criminal charges solely to obtain an advantage in a civil matter. The fact that South Carolina chose to include this rule when it replaced its Code of Professional Responsibility, and when the Model Rules do not include it, indicates its strict application is favored.
Having a representative of the taxing authorities present is a threatening of criminal charges for non-filing of tax returns. The only other reason for counsel to contact such representative is to coerce a settlement right before the case is called. The threat is compounded by the failure of the claimant to learn of the presence of the authorities until he arrives for the hearing. The representative has no evidence to present, because no returns have been filed. The matter of the claimant's on-the-job accident and his non-filing of tax returns are unrelated matters. This further undercuts any argument counsel could make that his motives are honorable. Rules 3.1, 3.4(e) and 4.4, SCACR 407 may also be implicated by this conduct, but Rule 4.5 SCACR 407 would clearly be violated.