Can a lawyer who personally investigated the case and talked to a key witness still try the case, or must the lawyer step aside as a necessary witness?

Plain-English summary

A lawyer represented a plaintiff in a car-accident case. Before suit, the lawyer had personally investigated the accident, learned the other car was owned by a rental company he had dealt with before, and spoke directly with the company's manager about the accident. The insurer for the rental company and the driver then denied liability and denied that the incident even occurred, and the lawyer filed suit. The question was whether the lawyer could continue to try the case.

The committee said the issue is governed by Rule 3.7, which separates the roles of advocate and witness: a lawyer may not act as advocate at a trial in which the lawyer is likely to be a necessary witness. Whether this lawyer was a necessary witness, the committee said, is a factual question (turning on whether his account of the conversation with the manager is needed evidence), not an ethical one, so the committee did not resolve it. If the lawyer received information that made him a necessary witness, Rule 3.7 supplies three exceptions, and the relevant one here is the third: an advocate may testify if disqualification would work substantial hardship on the client. The committee concluded that, absent a showing of such hardship, a lawyer who is a necessary witness could not continue to represent the client.

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 Treat this page as historical context, not current guidance.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: Does talking to a key witness yourself disqualify you from trying the case?

A: Not automatically. The committee said the question is whether you are a "necessary witness" under Rule 3.7, which is a factual issue; only if you are a necessary witness does the advocate-witness prohibition come into play.

Q: What lets a lawyer who is a necessary witness still try the case?

A: The committee pointed to the third exception in Rule 3.7(a)(3): the lawyer may continue as advocate if disqualification would work a substantial hardship on the client.

Q: Who decides whether the lawyer is a "necessary" witness?

A: The committee treated that as a factual, not ethical, question and declined to decide it, leaving it to be resolved on the facts of the case.

Background and rules framework

The opinion applies Rule 3.7 of the South Carolina Rules of Professional Conduct, which corresponds to Model Rule 3.7 (lawyer as witness). The rule bars a lawyer from acting as advocate at a trial in which the lawyer is likely to be a necessary witness, subject to enumerated exceptions, including substantial hardship to the client.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 3.7 / Model Rule 3.7: a lawyer who is likely to be a necessary witness may not act as advocate, with exceptions including the substantial-hardship exception in subsection (a)(3).

See also

• SC Bar Ethics Op. 05-06: Defense Lawyer as Witness
• SC Bar Ethics Op. 07-07: Advocate-Witness Exceptions
• SC Bar Ethics Op. 90-42: Former Client's Confidences in a Later Suit

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-90-32/

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 90-32

An attorney represents a plaintiff who originally contacted him to advise him that his car had been hit by another car. The attorney investigated and discovered the car was owned by ABC Rentals. Since the attorney had done business with the company before and knew the manager, he called the manager and had a conversation with him concerning the accident. Subsequently, the insurance company insuring ABC and the driver of the vehicle denied any liability for the accident and further denied that the incident occurred. The attorney then brought suit for his client.

Questions:

1. Is the lawyer likely to be a necessary witness in the plaintiff's case versus ABC rental?
2. Even if the lawyer is a necessary witness, would disqualification of the attorney work substantial hardship on the claim?

Summary:
If the lawyer is a necessary witness, the lawyer must be disqualified unless such disqualification would work substantial hardship on his client.

Opinion:
Rule 3.7 of the South Carolina Rules of Professional Conduct sets forth the guidelines for a lawyer to avoid mixing advocacy and testimony. A lawyer may not act as advocate if the lawyer is likely to be a necessary witness. Whether the lawyer is a necessary witness is a factual, rather than ethical, issue.

If the lawyer received information which would make him a necessary witness, Rule 3.7 provides three exceptions to the prohibition against testifying advocates. The third exception allows an advocate to testify if disqualification of the lawyer would work substantial hardship in the client (Rule 3.7 (a) (3). Hence, if the lawyer is a necessary witness, unless the attorney could show that disqualification would work a substantial hardship on the client, the lawyer could not continue to represent the client.