In Fine Housing, Inc. v. Sloan, 2020 S.C. App. LEXIS 89 (S.C. Ct. App. 2020), the court of appeals discussed a number of aspects of the lawyer-witness rule, South Carolina Rule of Professional Conduct 3.7, which is identical to the ABA Model Rule. First, the court recognized that disqualification under the rule applies only if the lawyer is a “necessary” witness, but the concept of “necessary” witness does not require the lawyer to be the only witness with regard to a matter. An attorney may be disqualified if there is no other witness available to provide evidence regarding the “full circumstances” and other “material information.” Second, the court held that the exception to the lawyer-witness rule in 3.7(a)(2), which provides that the rule does not apply if “the testimony relates to the nature and value of legal services rendered in the case” (emphasis added), did not apply when the lawyer’s testimony related to prior representation of the client. The court also found that the “substantial hardship” exception in Rule 3.7(a)(3) did nor apply because the prevailing view of the exception was that it required more than simply additional expense from hiring new counsel; instead, the exception requires “extensive knowledge of a case based upon a long-term relationship between the client and counsel and substantial discovery conducted in the actual litigation.” The court noted in passing that any hardship to client was diminished because the disqualification of the particular lawyer who would be a witness would not disqualify his firm from continuing to represent the client. See Rule 3.7(b). Finally, in further mitigation of the practical effect of the rule, the court decided that the rule only applied to appearances at trial; it did not apply to representation in other matters or even to represetation in other aspects of the case itself, such as discovery. This limitation on the scope of the rule is consistent with a fundamental purpose of the rule, namely to prevent jury confusion.

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