May a South Carolina lawyer file affidavits containing hearsay or statements not based on the witness's personal knowledge in support of ex parte requests or temporary hearings?

Plain-English summary

A family-law practitioner, Lawyer A, asked the committee about including information in affidavits for temporary hearings that is not based on the witness's personal knowledge or is based on hearsay. The question was whether a lawyer representing a client in a divorce action may file affidavits supporting ex parte requests or temporary hearings that contain hearsay or non-personal-knowledge information.

The committee answered that a lawyer may file such affidavits so long as the hearsay or other information is clearly identified as such, and that the admissibility of that evidence is a matter of substantive law. Rule 3.3(a)(3) prohibits a lawyer from tendering false information to a court, so when preparing affidavits that contain hearsay for signature, the lawyer has a duty to ensure the affidavit clearly identifies the information as hearsay. The committee gave an example: a lawyer may not knowingly present an affidavit in which Party A testifies to Fact X unless Party A has first-hand knowledge of it; if Party A merely heard from Party B that Fact X occurred, the affidavit must say so.

The committee added two further duties. Where the lawyer submits a pre-signed and sworn affidavit the lawyer knows contains hearsay not identified as such, the lawyer must advise the court of the hearsay. And in ex parte proceedings, the lawyer must comply with Rule 3.3(d) and ensure that all material facts known to the lawyer are presented so the court can make an informed decision.

In practice

The opinion holds that, under the South Carolina rule as it stood at the time, a lawyer may file affidavits containing hearsay or non-personal-knowledge information for ex parte requests or temporary hearings, provided the hearsay is clearly labeled as such; whether it is admissible is a question of law, not ethics. Under Rule 3.3(a)(3) the lawyer must not tender false information and must ensure affidavits identify hearsay as hearsay; if a pre-signed affidavit contains unlabeled hearsay the lawyer knows about, the lawyer must advise the court. In ex parte proceedings, Rule 3.3(d) requires the lawyer to disclose all material facts known to the lawyer so the court can make an informed decision.

Common questions

Q: Can a lawyer put hearsay in an affidavit for a temporary hearing?

A: Yes, the committee concluded, so long as the hearsay is clearly identified as such; the admissibility of the evidence is a separate question of substantive law.

Q: What does Rule 3.3(a)(3) require for these affidavits?

A: It bars tendering false information, so the committee said the lawyer must ensure the affidavit clearly labels hearsay as hearsay rather than presenting it as the witness's personal knowledge.

Q: What if a client signs an affidavit containing unlabeled hearsay before the lawyer sees it?

A: The committee advised that if the lawyer knows a pre-signed, sworn affidavit contains hearsay not identified as such, the lawyer has a duty to advise the court of the hearsay.

Q: Are there extra duties in ex parte proceedings?

A: Yes. The committee said Rule 3.3(d) requires the lawyer to ensure all material facts known to the lawyer are presented so the court can make an informed decision.

Background and rules framework

The opinion interprets South Carolina Rule 3.3 (candor toward the tribunal), specifically Rule 3.3(a)(3) (a lawyer may not offer false evidence) and Rule 3.3(d) (in an ex parte proceeding, a lawyer must inform the tribunal of all material facts that will enable it to make an informed decision). These correspond to the like-numbered Model Rule provisions. The analysis separates the ethics question (truthful labeling and disclosure) from the evidentiary question of admissibility.

Citations and references

Rules of Professional Conduct:

• MR 3.3 / SC Rule 3.3(a)(3) (candor; prohibition on offering false evidence)
• MR 3.3 / SC Rule 3.3(d) (duty to disclose all material facts in ex parte proceedings)

See also

• SC Bar Ethics Op. 22-05: Client's Forged Court Filing
• SC Bar Ethics Op. 24-03: Client Dies Before Suit
• SC Bar Ethics Op. 13-01: Affidavit and an Altered Email

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-08-14/
• Original PDF: https://www.scbar.org/media/dzgjjv0t/08-14.pdf

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 08-14

SC Rules of Professional Conduct: 3.3(a) & (d)

Facts

Lawyer A, a family law practitioner, would like clarification on the propriety of including information in affidavits for temporary hearings that is not based on the witness’s personal knowledge or is based on hearsay.

Question

May a lawyer representing a client in a divorce action file affidavits in support of ex parte requests or temporary hearings that include hearsay or information that is not based on the witness’s personal knowledge?

Summary

A lawyer may file affidavits that include hearsay or information not based on a witness’s personal knowledge in support of ex parte requests or temporary hearings so long as the hearsay or other information is clearly identified as such. The admissibility of that evidence is a matter of substantive law.

Opinion

While a lawyer may file affidavits which include hearsay, the hearsay must clearly be identified as such. Admissibility of the evidence is a matter of law. However, Rule 3.3 (a)(3) prohibits a lawyer from tendering false information to a court. Therefore, to the extent that the lawyer is preparing affidavits which contain hearsay for signature, the attorney has a duty to ensure that the affidavit clearly identifies such information as hearsay. For example, a lawyer may not knowingly present an affidavit in which Party A testifies to Fact X unless Party A has first-hand knowledge of Fact X; if Party A merely heard from Party B that Fact X occurred, the affidavit must so state.

To the extent that the lawyer is submitting a pre-signed and sworn affidavit which the lawyer knows to contain hearsay not identified as such, the lawyer has a duty to advise the court of the hearsay. Furthermore, in ex parte proceedings, a lawyer must comply with the duties enunciated in Rule 3.3(d) and ensure that all material facts known to the lawyer will enable the court to make an informed decision.