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鈥橲 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 90-05
An attorney must decline representation if he knows or it is obvious that he ought to be called as a witness. DR 5-101; 5- 102. The roles of witness and advocate are inconsistent, since an attorney's representation makes him subject to impeachment as a witness, and places him in the unseemly position of arguing his own credibility. EC 5-9. Where an attorney has not, in fact, testified or where the fact-finding portion of the suit has ended, however, the conflict between roles as a witness and advocate don to exist. Accordingly, the attorney may resume representation of the client upon appeal.
Question:
Where an attorney has declined representation of a client due to his potential status as a witness at trial, may that attorney thereafter represent the client upon appeal where he did not actually testify?
Opinion:
Assuming there exists no other basis for the attorney to decline representation, the representative of the client is not prohibited by the Code of Professional Responsibility, Rule 32, Supreme Court Rules.
The prohibition against serving as counsel and witness in the same case is set forth in DR 5-101(B) and DR 5-102. The reasoning behind this rule can be found in EC 5-9:
If a lawyer is both counsel and witness, he becomes more easily impeachable for interest and thus may be a less effective witness. Conversely, the opposing counsel may be handicapped in challenging the credibility of the lawyer when the lawyer also appears as an advocate in the case. An advocate who becomes a witness is in the unseemly and ineffective position of arguing his own credibility. The roles of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the cause of another, while that of a witness is to state facts objectively.
Where the credibility of a witness' testimony is not placed into issue, the prohibition against acting as both witness and advocate does not apply. Coppock v. Helfer, 515 P.2d 488 (Colo. Ct. App. 1973). Thus, where the testimony is related to uncontested matters or formalities, an attorney may ethically engage in both roles. DR 5-101(B)(1), -(2); EC 5-10. Where summary judgment is granted, the attorney has not testified in the lower court, and the credibility of his testimony is not an issue before the appellate tribunal, it is ethically permissible to represent the corporation upon appeal. Marine Midland Bank v. Canisius College, 127 A.D.2d 1000, 512 N.Y.S.2d 943 (App. Div. 1987).
This opinion is specifically limited to the issue of a conflict based solely upon the likelihood of the attorney testifying at trial. Should an appeal from summary judgment be successful and the case be remanded for trial, counsel must again consider whether he or she has a conflict based upon the need for his or her testimony.