If a defense lawyer is the only witness to a statement a trial witness now contradicts, must the lawyer withdraw to testify, and does being sole counsel change that?

Plain-English summary

Lawyers A and B jointly represented a criminal defendant. At a pretrial hearing, witness W testified on a critical point in a way that differed radically from an earlier statement W had made to A and B, who were the only people present when W made it. Lawyer A wanted to call Lawyer B as a witness at trial to impeach W. The questions concerned the proper procedure when a witness contradicts an earlier statement made only to the lawyer, whether the lawyer must withdraw to testify for the client, and whether being sole counsel changes the result.

The committee said disqualification of a lawyer as trial advocate is required when the lawyer is likely to be a necessary witness in a contested matter, unless withdrawal would cause sufficiently substantial hardship to the client; the lawyer should avoid the dilemma by interviewing witnesses in the presence of a third person who could testify if needed. Under Rule 3.7, a lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness, except where disqualification would work substantial hardship on the client, and the rule applies to criminal and civil matters alike. Since A had determined B's testimony would likely be necessary, B must withdraw as trial advocate unless substantial hardship were shown; the committee cited ABA Standard 4-4.3(d) advising lawyers to interview witnesses with a third person present. The requirement is not changed by B being sole counsel, though in assessing substantial hardship it is appropriate to consider the expense and delay disqualification would cause and whether disqualification was foreseeable (citing ABA Formal Op. 339), so a late-emerging need to testify by a sole lawyer might bear on hardship. Even after withdrawing from active trial participation, B may, with the client's informed consent, assist other counsel in preparing the case and may participate in other pretrial proceedings if the matter on which B will testify is not at issue there (citing ABA Inf. Op. 89-1529); and A may continue to represent the defendant if A is not likely to be a necessary witness, with A not automatically disqualified by association with B under Rule 3.7(b).

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: Must a lawyer who will testify to impeach a witness withdraw as trial advocate?

A: The committee said yes, under Rule 3.7, where the lawyer is likely to be a necessary witness, unless disqualification would work a substantial hardship on the client.

Q: Does it change anything if the lawyer is the defendant's only lawyer?

A: The committee said the requirement to withdraw does not change, but being sole counsel may bear on the substantial-hardship analysis, for example if a late withdrawal would cause significant cost or delay.

Q: Can the testifying lawyer still help on the case?

A: The committee said yes; with the client's informed consent the lawyer may assist other counsel in preparation and take part in pretrial proceedings, so long as the matter on which the lawyer will testify is not at issue in them.

Q: Is the lawyer's co-counsel automatically disqualified too?

A: The committee said no; co-counsel A may continue to represent the defendant if A is not likely to be a necessary witness, and is not automatically disqualified by association with B under Rule 3.7(b).

Background and rules framework

The opinion applies Rule 3.7 (lawyer as witness), including the firm-association provision in Rule 3.7(b), corresponding to Model Rule 3.7. The committee drew on ABA Standard 4-4.3(d) and ABA Formal Op. 339 and Informal Op. 89-1529 in framing the substantial-hardship inquiry and the lawyer's permissible continuing role.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 3.7 / Model Rule 3.7: a lawyer likely to be a necessary witness may not act as trial advocate, except where disqualification would work substantial hardship; 3.7(b) addresses firm association.

Other opinions and authorities cited:

• ABA Standard 4-4.3(d), ABA Standards Relating to the Administration of Criminal Justice.
• ABA Formal Op. 339 (Jan. 31, 1975): expense and delay in the substantial-hardship analysis.
• ABA Informal Op. 89-1529 (Oct. 20, 1989): continuing assistance after withdrawal as advocate.

See also

• SC Bar Ethics Op. 90-32: Lawyer as Necessary Witness
• SC Bar Ethics Op. 07-07: Advocate-Witness Exceptions
• SC Bar Ethics Op. 05-06: Defense Lawyer as Witness

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-90-27/

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 90-27

Lawyers A and B represent defendant D in a criminal matter.

The testimony of witness W on a critical point at a pre-trial hearing differs radically from an earlier statement made by W to A and B. Only A and B were present when W made the earlier statement. Lawyer A wants to call Lawyer B as a witness at trial to impeach the statement of Witness W.

Questions:
What is the proper procedure to be followed by a lawyer when a witness, without warning to the lawyer, contradicts a statement previously made to the lawyer and the lawyer is the only witness to the earlier statement?
Must a lawyer withdraw as counsel if the lawyer will testify as a witness on behalf of the client of such a situation?
Would the result differ if the lawyer/witness is sole counsel for the criminal defendant?

Summary:
Unless disqualification would cause "substantial hardship" to the client, a lawyer may not continue to serve as counsel when the lawyer is likely to be a necessary witness to impeach the testimony of another witness. It does not matter that the lawyer is sole counsel for the client, except insofar as that fact may affect a showing of substantial hardship to the client.

Opinion:
Disqualification of a lawyer as an advocate at trial is required when the lawyer is likely to be a necessary witness in a contested matter, unless a sufficiently substantial hardship to the client would result from withdrawal. The lawyer should avoid the situation presented by interviewing witnesses in the presence of a third person who could testify if necessary. While disqualified as counsel at trial, however, the lawyer may continue to assist in the representation to a limited extent, including participation in pre-trial proceedings, so long as the matter on which the lawyer is to testify is not at issue in the proceeding.

Rule 3.7 of the South Carolina Rules of Professional Conduct provides that a lawyer "shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where...(3) Disqualification of the lawyer would work substantial hardship on the client." The rule applies both to criminal and civil representation. Under the facts presented, it appears that Lawyer A has determined that it is likely that the testimony of Lawyer B will be necessary to defend client D properly. In that case, Lawyer B must withdraw as an advocate at trial for D, unless "substantial hardship" can be shown. Although not formally adopted in South Carolina, Standard 4-4.3(d) of the ABA Standards Relating to the Administration of Criminal Justice recognizes this outcome and advises the lawyer to avoid precisely the dilemma presented:

Unless the lawyer for the accused is prepared to forego impeachment of a witness by the lawyer's own testimony as to what the witness stated in an interview or to seek leave to withdraw from the case in order to present such impeaching testimony, the lawyer should avoid interviewing a prospective witness except in the presence of a third person.

The requirement that the lawyer withdraw when it is likely the lawyer will be a necessary witness is not changed simply by the fact that the lawyer is sole counsel for the defendant. However, in determining whether withdrawal would work a substantial hardship on the client, it is appropriate to consider the extent to which disqualification would subject the client to expense and delay, see ABA Formal Op. 339 (Jan. 31, 1975), and whether the likelihood of disqualification was foreseeable. See Comment, S.C. Rule of Prof. Conduct 3.7. Therefore, if the need for the lawyer to testify does not become apparent until late in the representation, the fact that defendant has only one lawyer might possibly be relevant to the determination of substantial hardship, if withdrawal of the sole lawyer at the late date is likely to cause the client to suffer significant cost or delay.

Even if Lawyer B must withdraw from active participation at trial under Rule 3.7, however, B, with the informed consent of the client, can continue to assist other counsel in the preparation of the case. B also may participate in other pre-trial proceedings, if the matter upon which B will testify is not at issue in such proceedings. ABA Inf. Op. 89-1529 (Oct. 20, 1989). Lawyer A also may continue to represent D if A is not likely to be a necessary witness, so long as no other cause for withdrawal exists. Even if A and B are members of the same firm, A is not automatically disqualified by virtue of the association with B. See Rule 3.7(b).