Does a lawyer violate the rules by telling an opposing witness, after her deposition, that the deposition could have been skipped if the other side agreed not to call her at trial?

Plain-English summary

During a deposition of one of the plaintiff's two key witnesses (a mother and daughter, one of them elderly), the lawyers stopped and, out of the witnesses' presence, the defense offered to cancel the deposition if the plaintiff's lawyer would not call the elderly witness at trial. The plaintiff's lawyer declined and asked the defense not to tell the witnesses about the offer, saying it would prejudice them against the plaintiff. The deposition resumed, and after it ended the defense lawyer told the witness about the offer. The inquiry asked whether the defense lawyer violated the Rules by disclosing the offer to the witness.

The committee concluded that disclosure to the witness after her deposition was not ethically improper. It read Rule 3.4 (fairness to opposing party and counsel) as forbidding a lawyer from unlawfully obstructing access to evidence, falsifying evidence, inducing false testimony, or asking a non-client to refrain from voluntarily giving relevant information (subject to narrow exceptions). The committee found that none of those prohibited acts occurred: the remark came after the deposition, the lawyer did not obstruct the plaintiff's access to evidence or induce false testimony, and the statement was not a prohibited inducement because the lawyer did not tell the witness not to testify. The committee distinguished the timing, observing that had the remark been made before the deposition it might have violated the rule by influencing the witness not to testify, citing ABA Formal Op. 131 (1935) on the impropriety of influencing persons to withhold information from opposing counsel. The committee noted the remark was made in disregard of opposing counsel's request and pointed to the Preamble's expectation that lawyers be guided by personal conscience and professional peers, while finding no rule violation.

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 Treat this page as historical context, not current guidance.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: Did telling the witness about the offer after her deposition violate Rule 3.4?

A: The committee said no. The remark came after the deposition, did not obstruct discovery, and did not ask the witness to refrain from giving information, so none of Rule 3.4's prohibitions were triggered.

Q: Would the timing have mattered?

A: The committee said yes. Had the remark been made before the deposition, it might have violated the rule by influencing the witness not to testify, citing ABA Formal Op. 131 (1935).

Q: Did it matter that the lawyer ignored opposing counsel's request not to tell the witness?

A: The committee noted the remark disregarded that request and referred to the Preamble's reliance on personal conscience and professional peers, but it found no violation of the Rules.

Background and rules framework

The opinion applied Rule 3.4 (fairness to opposing party and counsel), corresponding to Model Rule 3.4, quoting the rule's prohibitions on obstructing access to evidence, falsifying evidence or inducing false testimony, and requesting that a non-client withhold information except in narrow circumstances. The committee treated the timing of the lawyer's statement (after, not before, the deposition) as the controlling fact.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 3.4 / Model Rule 3.4: fairness to opposing party and counsel, including limits on obstructing evidence and requesting that witnesses withhold information.

Other opinions cited:

• ABA Formal Op. 131 (1935): impropriety of influencing persons to refuse to give information to opposing counsel.

See also

• SC Bar Ethics Op. 90-17: Advising a Client to Contact an Adverse Party
• 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-90-19/

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 90-19

The plaintiff's lawyer has two (2) key witnesses, a mother and daughter. Neither wants to go through a deposition. One is elderly and has trouble recalling events when being deposed by the defense. The plaintiff and defense lawyers stop the deposition, and out of the presence of the witnesses, the defense offers to stop the deposition if the plaintiff's lawyer will not call the elderly witness. Plaintiff's lawyer says he cannot stipulate to that and offers to ask the witness questions for the defense lawyer. The plaintiff's lawyer tells the defense lawyer not to inform the witnesses of the offer since it would prejudice the witnesses against the plaintiff's lawyer and case. The defense lawyer reconvenes the deposition. After the deposition is over, the defense lawyer informs the witness of his offer not to take her deposition if the plaintiff's lawyer would not call her as a witness at trial.

Question:
Did the defense lawyer violate the Rules of Professional Conduct when he told the witness of his offer to cancel her deposition if the plaintiff would not call her as a witness at trial?

Summary:
Disclosure to an opposing witness, after her deposition, of the fact that her deposition could have been canceled if the plaintiff's attorney would not call her as a witness at trial would not be ethically improper.

Opinion:
The Rules of Professional Conduct regarding fairness to opposing parties and counsel are imperatives. They provide that a lawyer shall not destroy or conceal evidence, improperly influence witnesses or use obstructive tactics in discovery. The statement of opposing counsel to the plaintiff's witness after her deposition that she would not have been deposed if plaintiff's lawyer would not use her as a witness at trial did not violate Rule 3.4 in that the statement did not obstruct the discovery process nor did the lawyer request the witness to refrain from voluntarily providing information.

A lawyer may communicate with a witness of the opposing side but the lawyer may not improperly influence the witness not to testify. Under Rule 3.4 of the Rules of Professional Conduct, a lawyer must be fair to the opposing party and counsel. The rule is as follows:

A lawyer shall not:
(a) Unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act; (b) Falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law; (c) Knowingly disobey an obligation under the rules of tribunal except for an open refusal based on an assertion that no valid obligation exists; (d) In pretrial procedure, make a frivolous discovery request or fail to make a reasonably diligent effort to comply with a legally proper discovery request by an opposing party; (e) In trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused; or (f) Request of person other than a client to refrain from voluntarily giving relevant information to another party unless:

(1) The personal is a relative or an employee or other agent of a client; and (2) The lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information.

The situation presented does not indicate that any of the above prohibited acts took place. The statement of the defense lawyer took place after the deposition of the witness. The defense lawyer did not obstruct plaintiff's access to evidence or induce the witness to testify falsely. The statement was not an inducement that is prohibited by law because the defense lawyer did not tell the witness not to testify. Rather he commented after her deposition that her deposition would not have been necessary if the plaintiff would not call her as a witness at trial. This statement did not obstruct the discovery process. ABA Formal Opinion No. 131 (1935) states that it is improper for an attorney to influence persons to refuse to give information to opposing counsel which may be useful or essential in establishing the true facts and circumstances of the dispute. In the situation presented, the remarks of the defense attorney came after the deposition was concluded. If the remarks had been made prior to the deposition, then the defense lawyer may have violated the rules in that his remarks may have influenced the witness not to testify.

It appears in this case that the defense lawyer made a remark to the plaintiff's witness in disregard of the request of the plaintiff's lawyer. Under the old Canons of Ethics, Canon 7 provided that lawyers should exhibit courtesy and good faith to each other. The new Rules of Professional Responsibility admonish lawyers to exhibit fairness to opposing parties and their counsel by directing and mandating certain conduct. While the new rules are more specific in regulating lawyer conduct, lawyers should not abuse the spirit of the Rules set out in the Preamble which states that lawyers should be guided by personal conscience and the approbation of professional peers.