Can a lawyer advise a client to accept a settlement that requires the client not to voluntarily testify in related cases?

Plain-English summary

In a consolidated action, plaintiff's counsel received a proposal from defense counsel to settle with the plaintiff on condition that the plaintiff "not voluntarily testify" in the remaining consolidated cases. The plaintiff was a listed, potentially material witness expected to testify. The question was what ethical considerations bore on advising the client to accept that condition.

The committee concluded the answer depended on what "not voluntarily testify" meant. Rule 3.4(f) prohibits a lawyer from requesting a person other than a client to refrain from voluntarily giving information to another party, unless that person is a relative or employee of the lawyer's client. If defense counsel was asking the plaintiff to withhold relevant information from another party, the request itself violated Rule 3.4(f), and under Rule 8.4(a) plaintiff's counsel would be assisting that violation by recommending the request to the client. If, on the other hand, the plaintiff had already given all relevant information and defense counsel was merely asking that the plaintiff not volunteer to testify, the request was not prohibited by any rule, however useless it and any return promise might be. The committee said plaintiff's counsel must determine, and if necessary inquire, exactly what was being requested, and must keep the plaintiff informed of all communications between counsel.

Currency note

This opinion was issued in 1993, 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 Treat this page as historical context, not current guidance.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: Can a settlement require a party not to voluntarily testify in related cases?

A: It depends. The committee said that if the term asks the person to withhold relevant information from another party, it violates Rule 3.4(f); if the person has already given all relevant information and is merely asked not to volunteer, it is not prohibited.

Q: What is the risk for the lawyer who recommends accepting such a term?

A: Under Rule 8.4(a), recommending an improper request to the client makes the lawyer an assistant to the other lawyer's Rule 3.4(f) violation, because a lawyer may not knowingly assist another to violate a rule.

Q: What should plaintiff's counsel do when the term is ambiguous?

A: The committee said counsel must decide, and if necessary inquire, exactly what is being requested, and must keep the client informed of all communications between counsel.

Background and rules framework

The opinion applied Rule 3.4(f) (fairness to opposing party and counsel) and Rule 8.4(a) (misconduct through the acts of another), which correspond to like-numbered Model Rules. Rule 3.4(f) bars requesting a non-client to refrain from voluntarily giving information to another party, with an exception for the client's relatives or employees.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 3.4(f) / Model Rule 3.4(f): a lawyer shall not request a person other than a client to refrain from voluntarily giving relevant information to another party, except a relative or employee of the client.
• South Carolina RPC 8.4(a) / Model Rule 8.4(a): a lawyer shall not knowingly assist another to violate the rules.

See also

• SC Bar Ethics Op. 93-16: Reaching a Represented Party
• SC Bar Ethics Op. 08-05: Paying a Witness's Lawyer's Fees
• SC Bar Ethics Op. 93-21: Calling Referral-Service No-Shows

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-93-20/

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 93-20

Plaintiff's attorney in a consolidated action involving a number of cases, has received a proposal from defendant's counsel to settle with the plaintiff conditioned upon an agreement that the plaintiff "not voluntarily testify" in the remaining consolidated cases. The plaintiff may be considered a material witness, is a listed witness, and is expected to testify in the remaining actions.

Question:
What ethical considerations should plaintiff's counsel consider in advising his client to accept a settlement agreement conditioned upon the client agreeing to not voluntarily testify in the remaining actions?

Summary:
The answer to this depends on what the plaintiff's attorney believes or determines the defendant's attorney to mean by "not voluntarily testify." If the plaintiff's lawyer believes that the defendant's lawyer is asking the plaintiff to refrain from voluntarily giving relevant information to another party, then it would be a violation of the Rules of Professional Conduct for the plaintiff's attorney to advise his client to "not voluntarily testify" in the remaining actions under the facts of this inquiry.

Opinion:
Rule 3.4(f) prohibits a lawyer from requesting a person other than a client to refrain from voluntarily giving information to another party unless the person being requested not to testify is a relative or employee of that lawyer's client. Consequently, if the defendant's lawyer is requesting that the plaintiff withhold relevant information from another party, it is a violation for defense counsel in this case to ask the plaintiff's counsel to request that his client not testify. (It is assumed, since not stated, that the plaintiff is neither a relative nor an employee of the defendant.) Rule 8.4(a) prohibits a lawyer from knowingly assisting another to violate any Rule. By recommending to his client an improper request of defense counsel, plaintiff's counsel would be assisting the defense counsel in violating Rule 3.4(f), since that lawyer should not ask one who is not a relative or employee of his client to refrain from voluntarily giving relevant information. If, on the other hand, the plaintiff has already given all relevant information in the case to the other parties and the defense counsel is merely requesting that the plaintiff not volunteer to testify in the other cases, such a request is not prohibited by any of the Rules of Professional Conduct, and the plaintiff's lawyer would not be participating in any prohibited conduct.

Consequently, the plaintiff's lawyer must decide, and, if necessary, inquire to ascertain exactly what is being requested by the defense counsel. If the defense lawyer is attempting to prevent the plaintiff from providing relevant information, the request should not be recommended to the client. If defense counsel is simply requesting that the plaintiff not volunteer to testify, this request, useless as it and any return promise may be, is not improper. The plaintiff should be kept informed of all communications between counsel.