If a lawyer stepped aside at trial because he might be a witness but never testified, can he represent the client on appeal?

Plain-English summary

A lawyer had declined to represent a client at trial because of his potential status as a witness. The inquiry asked whether that lawyer could thereafter represent the client on appeal where he did not actually testify.

The committee concluded that, assuming no other basis to decline, the lawyer was not prohibited from handling the appeal. It explained that the bar on serving as both counsel and witness in the same case, set out in DR 5-101(B) and DR 5-102, rests on the reasoning in EC 5-9: an advocate who becomes a witness is in the unseemly position of arguing his own credibility, and the roles of advocate and witness are inconsistent. Where the credibility of a witness's testimony is not placed in issue, the committee said, the prohibition does not apply (citing Coppock v. Helfer), and where testimony relates only to uncontested matters or formalities a lawyer may ethically fill both roles. Because the lawyer had not testified in the lower court and the credibility of his testimony was not an issue before the appellate tribunal, it was ethically permissible to represent the client on appeal (citing Marine Midland Bank v. Canisius College). The committee limited the opinion to a conflict based solely on the likelihood of the lawyer testifying at trial, and cautioned that if an appeal succeeded and the case was remanded for trial, counsel would again have to consider whether a conflict existed based on the need for his testimony.

Currency note

This opinion was issued in 1990, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a lawyer who stepped aside at trial as a possible witness handle the appeal?

A: The committee said yes, where he did not actually testify and no other basis to decline existed, because the advocate-witness conflict did not extend to the appeal.

Q: Why didn't the advocate-witness rule bar the appeal?

A: Because, the committee said, the rule turns on the lawyer's credibility being at issue; he had not testified below and his credibility was not before the appellate court.

Q: What if the appeal succeeds and the case goes back for trial?

A: The committee said counsel would have to reconsider, at that point, whether a conflict existed based on the need for his testimony at the new trial.

Background and rules framework

The opinion applied the former Code's DR 5-101(B) and DR 5-102 (lawyer as witness), with EC 5-9 and EC 5-10, corresponding to Model Rule 3.7. The committee tied the prohibition to whether the lawyer's credibility as a witness was at issue in the proceeding.

Citations and references

Rules of Professional Conduct (then in force):

• Code of Professional Responsibility DR 5-101(B) and DR 5-102: a lawyer who ought to be a witness should decline or withdraw from representation. (Now reflected in Model Rule 3.7 / South Carolina RPC 3.7.)

Cases:

• Coppock v. Helfer, 515 P.2d 488 (Colo. Ct. App. 1973).
• Marine Midland Bank v. Canisius College, 127 A.D.2d 1000, 512 N.Y.S.2d 943 (App. Div. 1987).

See also

• SC Bar Ethics Op. 90-27: Co-Counsel as a Necessary Witness
• SC Bar Ethics Op. 90-19: Disclosing a Deposition Offer to a Witness

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-90-05/

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 90-05

An attorney must decline representation if he knows or it is obvious that he ought to be called as a witness. DR 5-101; 5- 102. The roles of witness and advocate are inconsistent, since an attorney's representation makes him subject to impeachment as a witness, and places him in the unseemly position of arguing his own credibility. EC 5-9. Where an attorney has not, in fact, testified or where the fact-finding portion of the suit has ended, however, the conflict between roles as a witness and advocate don to exist. Accordingly, the attorney may resume representation of the client upon appeal.

Question:
Where an attorney has declined representation of a client due to his potential status as a witness at trial, may that attorney thereafter represent the client upon appeal where he did not actually testify?

Opinion:
Assuming there exists no other basis for the attorney to decline representation, the representative of the client is not prohibited by the Code of Professional Responsibility, Rule 32, Supreme Court Rules.

The prohibition against serving as counsel and witness in the same case is set forth in DR 5-101(B) and DR 5-102. The reasoning behind this rule can be found in EC 5-9:
If a lawyer is both counsel and witness, he becomes more easily impeachable for interest and thus may be a less effective witness. Conversely, the opposing counsel may be handicapped in challenging the credibility of the lawyer when the lawyer also appears as an advocate in the case. An advocate who becomes a witness is in the unseemly and ineffective position of arguing his own credibility. The roles of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the cause of another, while that of a witness is to state facts objectively.

Where the credibility of a witness' testimony is not placed into issue, the prohibition against acting as both witness and advocate does not apply. Coppock v. Helfer, 515 P.2d 488 (Colo. Ct. App. 1973). Thus, where the testimony is related to uncontested matters or formalities, an attorney may ethically engage in both roles. DR 5-101(B)(1), -(2); EC 5-10. Where summary judgment is granted, the attorney has not testified in the lower court, and the credibility of his testimony is not an issue before the appellate tribunal, it is ethically permissible to represent the corporation upon appeal. Marine Midland Bank v. Canisius College, 127 A.D.2d 1000, 512 N.Y.S.2d 943 (App. Div. 1987).

This opinion is specifically limited to the issue of a conflict based solely upon the likelihood of the attorney testifying at trial. Should an appeal from summary judgment be successful and the case be remanded for trial, counsel must again consider whether he or she has a conflict based upon the need for his or her testimony.