Can a lawyer under contract to a sheriff testify as a witness at preliminary hearings from the sheriff's files?

Plain-English summary

A lawyer in private practice was under contract to provide legal services to a county sheriff, maintaining both a private office and an office within the sheriff's department. The sheriff asked the lawyer to present evidence at preliminary hearings, where the lawyer's duties would be solely to act as a witness testifying from the sheriff's files. The question was whether performing those duties was permissible under the Rules.

The committee concluded that, on these facts, the lawyer's duty at the preliminary hearing is limited to being a witness, and the Rules do not prohibit an attorney from being a witness, provided the attorney does not blend the roles of attorney and witness. It quoted Rule 3.7, under which a lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness, except where the testimony relates to an uncontested issue, relates to the nature and value of legal services in the case, or where disqualification would work substantial hardship on the client; and under which a lawyer may act as advocate in a trial where another lawyer in the firm is likely to be a witness unless precluded by Rule 1.7 or 1.9.

The committee concluded the lawyer's conduct, limited to testifying, does not violate Rule 3.7, but added that it would be prudent for a member of the sheriff's department other than the lawyer to testify at preliminary hearings to avoid confusion as to whether the lawyer is appearing as a witness, an advocate, or both.

Currency note

This opinion was issued in 1999, 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 Treat this page as historical context, not current guidance.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 sheriff's contract lawyer testify as a witness at preliminary hearings?

A: The committee concluded yes: the Rules do not prohibit a lawyer from being a witness, provided the lawyer does not blend the roles of witness and advocate.

Q: What if the lawyer also acts as the sheriff's advocate at the hearing?

A: The committee concluded that acting as both witness and advocate is prohibited by Rule 3.7 unless it qualifies under one of the rule's specific exceptions.

Q: Did the committee suggest anything beyond the rule's minimum?

A: It noted it would be prudent for someone other than the lawyer to testify, to avoid confusion over whether the lawyer is appearing as witness, advocate, or both.

Background and rules framework

The opinion interpreted South Carolina RPC 3.7 (lawyer as witness; the bar on serving as advocate where the lawyer is likely to be a necessary witness, and its exceptions), corresponding to Model Rule 3.7.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 3.7 / Model Rule 3.7: lawyer as witness.

See also

• No sibling opinions yet indexed.

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-99-03/

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 99-03

Facts:
A lawyer in private practice is under contract to provide legal services to a county sheriff. The lawyer maintains a private office as well as an office within the sheriff's department. The sheriff has requested that the lawyer present evidence at preliminary hearings. The lawyer's duties at preliminary hearings will be to act solely as a witness testifying from the sheriff's files.

Question:
Is it permissible under the Rules of Professional Conduct for the lawyer to perform these duties?

Summary:
Under the facts presented, the lawyer is acting solely as a witness, which is not prohibited by the Rules of Professional Conduct. If the lawyer acts as both witness and sheriff's lawyer at a preliminary hearing, the conduct is prohibited by Rule 3.7 of the Rules of Professional Conduct, unless qualifying under one of the specific exceptions contained in this rule.

Opinion:
Under the facts of this inquiry, the attorney's duty at the preliminary hearing is limited to being a witness. The Rules of Professional Conduct do not prohibit an attorney from being a witness, provided that the attorney does not blend his role as attorney and witness.

Rule 3.7 of the Rules of Professional Conduct provides:

(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:
(1) The testimony relates to an uncontested issue;
(2) The testimony relates to the nature and value of legal services rendered in the case; or
(3) Disqualification of the lawyer would work substantial hardship on the client.
(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.

Although the lawyer's conduct does not violate Rule 3.7, it appears to the Committee that it would be prudent for a member of the sheriff's department other than the lawyer to testify at preliminary hearings to avoid confusion as to whether the lawyer is appearing as a witness, an advocate, or both.