Can a lawyer representing himself serve as both advocate and witness in his own case?

Plain-English summary

The inquiry asked whether, under the Rules of Professional Conduct and the former Code, it is ethical for an attorney to act as both advocate and witness in his own case.

The committee concluded that neither the Model Rules nor the former Model Code prevents a lawyer from appearing as both witness and advocate in his own case. Because the request did not say whether the matter was civil or criminal, the committee noted that Article I, Section 14 of the South Carolina Constitution grants a criminal defendant the right to be fully heard by himself, by counsel, or both; where the Rules might conflict with the Constitution, the Constitution prevails, so an attorney has a constitutional right to appear pro se in his own criminal case and should not be disciplined for doing so, provided he otherwise acts ethically (for example, he remains subject to discipline for fraud on the court). The committee read Rule 3.7, which governs the advocate-witness situation, and its predecessors DR 5-101(B) and DR 5-102, as intended to apply where the attorney represents a third-party client, with no express application to a lawyer appearing pro se. It acknowledged the comment's concern that a fact-finder might confuse an advocate-witness's statements as proof rather than argument, and offered a two-fold solution: the pro se attorney should refrain from improperly placing factual matters before the trier of fact (limiting cross-examination and closing argument to matters in evidence), and the trial judge and opposing counsel should be vigilant through timely objections and proper instructions. As to EC 5-9's point that an advocate arguing his own credibility is in an unseemly position, the committee characterized that as a matter of trial strategy rather than an ethical difficulty, and found no other applicable rule or precedent on pro se attorneys.

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 Treat this page as historical context, not current guidance.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 self-represented lawyer be both advocate and witness in his own case?

A: The committee said yes. Rule 3.7 and its predecessors address representing a third-party client, not a lawyer appearing pro se, so they did not bar it.

Q: Did the criminal-civil distinction matter?

A: The committee said a criminal defendant has a constitutional right under the South Carolina Constitution to appear pro se, which prevails over any conflicting rule, so a lawyer cannot be disciplined merely for self-representation in his own criminal case.

Q: What about the awkwardness of arguing one's own credibility?

A: The committee treated that as trial strategy, not an ethics problem, and pointed to ordinary procedural safeguards, judicial instructions, and opposing counsel's objections to prevent confusion of argument with evidence.

Background and rules framework

The opinion applied Rule 3.7 (lawyer as witness) and the former Code's DR 5-101(B) and DR 5-102, with cross-references to Rules 1.7 and 1.9, corresponding to Model Rules 3.7, 1.7, and 1.9, and read against Article I, Section 14 of the South Carolina Constitution.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 3.7 / Model Rule 3.7: lawyer as witness, applied to representation of a third-party client.
• South Carolina RPC 1.7 / Model Rule 1.7 and RPC 1.9 / Model Rule 1.9: conflicts, referenced where the lawyer's testimony bears on other clients.
• Former Code DR 5-101(B), DR 5-102; EC 5-9.

Constitutional provisions:

• S.C. Const. art. I, § 14: a criminal defendant's right to be heard by himself, counsel, or both.

See also

• SC Bar Ethics Op. 90-05: Witness-Lawyer on Appeal
• SC Bar Ethics Op. 90-27: Co-Counsel as a Necessary Witness

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-90-07/

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 90-07

An attorney has a constitutional right to appear pro se in a criminal matter, and is not subject to discipline for doing so provided that he observed all other applicable rules of professional conduct.

Under both the Model Rules of Professional Conduct and the Model Code of Professional Responsibility, an attorney may appear pro se in a civil matter, but should take care to avoid using his dual role as a vehicle for placing improper matters before the trier of fact.

The difficulty of arguing as an advocate in favor of one's own credibility as a witness counsels against an attorney acting as a witness in his own case.

Question:
Is it ethical, under the present Model Rules of Professional Conduct and the old Model Code of Professional Responsibility, for an attorney to act as both an advocate and a witness in his own case?

Opinion:
Neither the Model Rules of Professional Conduct nor the Model Code of Professional Responsibility prevent a lawyer from appearing as both a witness and an advocate in his own case.

The underlying request for an advisory opinion did not indicate whether the matter involved was of a criminal or civil nature. This distinction is relevant to the extent that Article I, Section 14 of the South Carolina Constitution specifically grants a criminal defendant the right "to be fully heard in his defense by himself or by his counsel or by both" (emphasis added). Although the South Carolina Supreme Court has the constitutional authority to regulate the practice of law, and in discharging that function has recently enacted the ABA Model Rules of Professional Conduct, to the extent that those Rules might conflict with the State Constitution, the latter must prevail. Thus, the Model Rules and the Model Code notwithstanding, an attorney has a constitutional right to appear pro se in his own criminal case and should not be disciplined by the Supreme Court for doing so, provided that he otherwise conducts himself in an ethical fashion. For example, even a pro se attorney would be subject to discipline for perpetrating a fraud upon the court.

Rule 3.7 of the ABA Model Rules of Professional Conduct controls situations in which an attorney acts as both an advocate and witness in the same case. For example, where the attorney's testimony might be adverse to his client's interest, might limit his ability to fully represent other active clients, or might require disclosure of confidences gained from other clients, Rule 3.7 would prevent the attorney from acting as a witness. See also, Model Rules 1.7 and 1.9. Yet the text of Rule 3.7 and the Comments thereto reveal that it is intended to apply where the attorney is involved in the representation of a third party client. It has no express application to attorneys who appear pro se.

Nonetheless, the Comments to Model Rule 3.7 indicate the possibility of confusion over "whether a statement by an advocate-witness should be taken as proof or as analysis of the proof." That is to say, comments made by an attorney in argument or during direct and cross-examination might be mistaken for evidence by the trier of fact.

The solution to this problem should be two-fold. First, the pro se attorney should, as in all cases, refrain from making remarks or asking questions which improperly raise or place factual matters before the trier of fact. For example, cross- examination should be limited to exploration of facts which have already been developed on direct examination, which itself should be conducted in the absence of leading questions raising factual issues for which there is no foundation. Moreover, closing arguments should be limited to comments on matters which are already in evidence. Second, both the trial judge and opposing counsel should be vigilant in assuring that no improper remarks are allowed into the record. Timely objections should be made by opposing counsel, and the trial judge should be careful to instruct the finder of fact to weigh only those matters which are proper for consideration. In short, due attention to normal procedural safeguards should alleviate any confusion about the evidentiary nature of remarks made by a pro se attorney.

As with Rule 3.7 of the Model Rules, DRs 5-101(B) and 5-102 of the ABA Model Code of Professional Responsibility are expressly concerned with attorneys who are witnesses in cases in which their client is a party. The applicability of these Disciplinary Rules to the pro se attorney is equivalent to that of Model Rule 3.7, and the concerns addressed above should also apply.

Ethical Consideration 5-9 of the Model Code indicates that an attorney who acts as a witness creates the dilemma of arguing in favor of her own credibility. As EC 5-9 itself notes, "If a lawyer is both counsel and witness, he becomes more easily impeachable and thus may be a less effective witness.... An advocate who becomes a witness is in the unseemly and ineffective position of arguing his own credibility." Yet this particular problem seems one of trial strategy rather than ethical difficulty--that one might be an incredible witness for oneself does not raise any ethical issue.

A review of prior South Carolina Ethics Advisory Opinions, South Carolina Supreme Court decisions, Opinions of the American Bar Association Committee on Professional Ethics, and treatises on legal ethics fails to reveal any other applicable rule or precedent on the issue of pro se attorneys.