Can a law firm's law clerk who interviewed a prospective opposing witness be called to testify about the substance of that conversation?

Plain-English summary

A law clerk in a firm representing one party in litigation conducted a telephone interview with a prospective witness likely to be called by opposing counsel. Setting hearsay concerns aside, the question was whether the law clerk can testify about the substance of the conversation.

The committee concluded the law clerk is not precluded from testifying, subject to the court's rulings on admissibility. Rule 3.7 prevents a lawyer from acting as an advocate at a trial where the lawyer is likely to be a necessary witness, but it does not extend to law firm employees, who are not acting as advocates at trial, and so it does not preclude the law clerk from testifying.

The committee added that, assuming the potential witness is not represented, a firm's law clerk may interview that witness and may be called to testify at trial, subject to the court's admissibility ruling, because no ethical rule prohibits a firm employee from testifying about the substance of a telephone conversation. It advised that the law clerk should take care to identify himself properly as a law clerk and should ask whether the potential witness is represented by counsel at the beginning of the interview.

In practice

The opinion holds that, under the South Carolina rules as they stood at the time, Rule 3.7 does not disqualify a firm's law clerk from testifying about a witness interview, because the clerk is not an advocate at trial; admissibility of the testimony is left to the court. The committee directed that, when interviewing an unrepresented prospective witness, the law clerk should identify himself as a law clerk and ask at the outset whether the witness is represented by counsel.

Common questions

Q: Can a firm's law clerk testify about a call with the opposing side's witness?

A: Yes. The committee concluded no ethical rule prohibits a firm employee from testifying about the substance of a telephone conversation, subject to the court's ruling on admissibility.

Q: Does Rule 3.7 disqualify the clerk the way it would a lawyer-witness?

A: No. The committee explained Rule 3.7 applies to lawyers acting as advocates at trial and does not extend to firm employees such as a law clerk.

Q: What should the law clerk do when interviewing the witness?

A: The committee advised the clerk should identify himself properly as a law clerk and ask whether the potential witness is represented by counsel at the beginning of the interview.

Background and rules framework

The opinion interprets South Carolina Rule 3.7 (lawyer as witness), and references the duties in Rule 4.2 (communication with a represented person) and Rule 4.3 (dealing with an unrepresented person) that frame how a firm's nonlawyer interviews a witness. These correspond to the like-numbered Model Rules. The analysis turns on the fact that a law clerk is not an advocate at trial, so the Rule 3.7 disqualification does not reach the clerk.

Citations and references

Rules of Professional Conduct:

• MR 3.7 / SC Rule 3.7 (lawyer as witness; advocate-witness disqualification)
• MR 4.2 / SC Rule 4.2 (communication with a represented person)
• MR 4.3 / SC Rule 4.3 (dealing with an unrepresented person)

See also

• SC Bar Ethics Op. 07-07: Advocate-Witness Exceptions
• SC Bar Ethics Op. 05-06: Defense Lawyer as Witness

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-09-05/
• Original PDF: https://www.scbar.org/media/nykl0hg5/09-05.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 09-05

SC Rules of Professional Conduct: 3.7, 4.2 4.3

Facts

A law clerk in a firm representing one party in a litigation matter conducts a telephone interview with a prospective witness likely to be called by the opposing counsel.

Question

Absent hearsay concerns, can the law clerk testify about the substance of the conversation?

Summary

The law clerk is NOT precluded from testifying, subject to rulings from the court on the admissibility of the testimony.

Opinion

Rule 3.7 prevents a lawyer from acting as an advocate at a trial where the lawyer is likely to be a necessary witness. Rule 3.7 does not extend to employees of law firms, as they are not acting as advocates at trial, and does therefore not preclude the law clerk from testifying.

Assuming that the potential witness is not represented, a law clerk for a firm may interview that witness and may be called as a witness at the trial subject to the court’s ruling on the admissibility of the testimony. There is no ethical rule that prohibits an employee of a law firm from testifying as to the substance of a telephone conversation.

The law clerk should take care, however, to identify himself properly as a law clerk and should inquire as to whether the potential witness is represented by counsel at the beginning of the interview.