If a criminal defense lawyer becomes a necessary witness, must the lawyer withdraw, can the lawyer still help with pretrial work, and can a partner take over the trial?

Plain-English summary

An attorney represented a criminal defendant pro bono on serious charges (two counts of kidnapping, two counts of first-degree burglary, ABHAN, misconduct in office, and pointing and presenting a firearm). Both alleged victims had made statements to the attorney that made the attorney a necessary witness. The defendant was seeking replacement counsel, but doing so would cost roughly $40,000 to $50,000. The attorney asked whether withdrawal was required, whether the attorney could stay involved short of speaking to the jury, and whether a firm member could take over.

The committee answered as follows. First, under Rule 3.7(a), the attorney may be required to withdraw, but because a Rule 3.7 withdrawal is fact-specific (and a criminal defendant has a qualified constitutional right to chosen counsel under State v. Sanders), the committee offered no opinion on whether the attorney must withdraw, inviting the attorney to review Sanders and decide. Second, assuming the attorney withdraws, the attorney may continue to participate in preparation and pretrial matters, since Rule 3.7(a) bars only acting "as an advocate at a trial." Third, subject to Rules 1.7 and 1.9, Rule 3.7 permits replacement counsel to be another member of the attorney's firm, because the normal Rule 1.10 imputed disqualification does not apply to a Rule 3.7 advocate-witness withdrawal; the committee encouraged any firm-member replacement to review Rules 1.7 and 1.9 first.

In practice

Under this opinion, on the facts presented, a defense lawyer who has become a necessary witness can step back from the trial itself while staying on for investigation, motions, and consultation, and can hand the trial to a partner. The committee tied the withdrawal question to the fact-specific Rule 3.7(a) analysis and Sanders (declining to say withdrawal was mandatory), confirmed that Rule 3.7 restricts only the trial-advocate role, and held that the advocate-witness disqualification is not imputed to the firm under Rule 1.10, leaving Rules 1.7 and 1.9 to be checked by the replacement.

Common questions

Q: My client's alleged victims made me a necessary witness. Do I have to withdraw?

A: Rule 3.7 may require it, but the committee declined to say withdrawal is mandatory here, calling it fact-specific and pointing to State v. Sanders for the lawyer to make an informed decision.

Q: If I withdraw from trial, can I still work on the case?

A: Yes. The committee concludes that, because Rule 3.7(a) bars only acting as an advocate at trial, the lawyer may continue with preparation and pretrial matters such as investigation, motions, and consulting with trial counsel.

Q: Can my law partner try the case instead?

A: Yes, subject to Rules 1.7 and 1.9. The committee holds the Rule 3.7 advocate-witness bar is not imputed to the firm under Rule 1.10, so a firm member may serve as replacement trial counsel after reviewing the conflict rules.

Background and rules framework

The opinion applies South Carolina's versions of Model Rule 3.7 (lawyer as witness), Model Rule 1.7 (current-client conflicts), and Model Rule 1.9 (former-client conflicts), at SCACR 407, and explains that Rule 1.10 imputation does not extend the Rule 3.7 advocate-witness disqualification to other firm members. It relies on State v. Sanders on a criminal defendant's qualified right to chosen counsel.

Citations and references

Rules of Professional Conduct:

• MR 3.7 / SC Rule 3.7(a) (lawyer as necessary witness; advocate-at-trial bar; non-imputation)
• MR 1.7 / SC Rule 1.7 (current-client conflicts)
• MR 1.9 / SC Rule 1.9 (former-client conflicts)

Cases:

• State v. Sanders, 341 S.C. 386, 534 S.E.2d 969 (S.C. 2000), criminal defendant's qualified constitutional right to chosen counsel under Rule 3.7

Other opinions cited:

• SC Ethics Advisory Opinions 04-08, 98-02, 90-27, 90-05 (advocate-witness and pretrial-participation issues)

See also

• SC Bar Ethics Op. 04-08: Former guardian ad litem switching sides
• SC Bar Ethics Op. 04-10: Imputed conflict and the lawyer-as-witness rule

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-05-06/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

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 05-06

RULES 1.7, 1.9 and 3.7

Facts
Attorney represents a criminal Defendant concerning two separate incidents. Defendant has been charged with two counts of Kidnapping, two counts of Burglary in the First Degree, ABHAN, Misconduct in Office, and Pointing and Presenting a Firearm. Both alleged victims have made statements to Attorney that have made Attorney a necessary witness.

Attorney has advised Defendant, and Defendant is in the process of obtaining replacement counsel. However, because of the nature of Defendant’s charges, obtaining replacement counsel will require approximately $40,000 to $50,000. Attorney was representing Defendant pro bono.

Questions
1. Must Attorney withdraw as counsel for Defendant?
2. If Attorney is required to withdraw, may Attorney remain involved in Defendant’s case, assisting Defendant’s replacement counsel, so long as Attorney does not speak in open court in front of the jury, other than as a witness (i.e., may Attorney argue motions, investigate, consult with replacement counsel at counsel’s table during trial)?
3. If Attorney is required to withdraw, may Defendant’s replacement counsel be another member of Attorney’s firm?

Summary
1. Pursuant to Rule 3.7 of the South Carolina Rules of Professional Conduct, Attorney may be required to withdraw from representation.
2. Pursuant to Rule 3.7, except for participation in the trial of the case itself, Attorney may remain involved in the preparation of and pre-trial matters related to Defendant’s case.
3. Subject to the prohibitions of Rules 1.7 and 1.9, Rule 3.7 permits replacement counsel to be another member of Attorney’s firm.

Opinion
The factual scenario described by this inquiry is addressed squarely by Rule 3.7(a) of the South Carolina Rules of Professional Conduct, South Carolina Supreme Court precedent, and prior opinions of this Committee. See, e.g., State v. Sanders, 341 S.C. 386, 534 S.E.2d 969 (2000) (holding, interpreting Rule 3.7, a criminal defendant has a qualified constitutional right to select defense counsel); S.C. Bar Ethics Adv. Op. # 04-08 (stating an attorney, who is likely to testify as a guardian ad litem, may not represent the ward during judicial proceedings); # 98-02 (same); # 90-27 (stating an attorney disqualified from handling the trial itself may continue to handle other pre-trial proceedings in which the attorney will not be a witness); # 90-05 (stating an attorney, who is not actually called as a trial witness, may subsequently handle the case on appeal).

In relevant part, Rule 3.7 provides: “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; . . . or (3) disqualification of the lawyer would work substantial hardship on the client.” 1 Although Attorney’s inquiry presents what appears, on its face, to be precisely the type of situation contemplated by Rule 3.7, before Attorney determines whether to voluntarily withdrawal from representing Defendant, we invite Attorney to review the Supreme Court’s opinion in Sanders, specifically addressing withdrawal of criminal defense counsel. Once Attorney reviews Sanders and the other relevant legal and ethical authority, Attorney should be able to make an informed decision regarding whether to withdrawal voluntarily. Because of the fact-specific and individualized nature of a Rule 3.7 withdrawal, the Committee offers no opinion regarding whether Attorney must withdraw.

Assuming Attorney eventually withdraws (whether by voluntary or involuntary means), Attorney may continue to participate in the preparation of, and pre-trial matters related to, Defendant’s case, as more fully outlined by this Committee’s prior opinion (# 90-27) and the annotations to Rule 3.7 in Robert M. Wilcox and Nathan M. Crystal, Annotated South Carolina Rules of Professional Conduct (2002 ed.). Cf. Rule 3.7(a) (stating “[a] lawyer shall not act as an advocate at a trial” (emphasis added)).

Finally, subject to the prohibitions of Rules 1.7 and 1.9, Rule 3.7 permits Defendant’s replacement counsel to be another member of Attorney’s firm. The normal imputed disqualification of Rule 1.10 does not apply to the Rule 3.7 advocate-witness withdrawal. However, if replacement counsel is another member of Attorney’s firm, we encourage replacement counsel to review thoroughly Rules 1.7 and 1.9 before undertaking Defendant’s representation.

1 Based on the facts of this inquiry, subitem “(2)” of the subsection “(a)” (relating to an attorney’s fees for services) clearly does not apply, and therefore, is not addressed in this opinion.