Vol. 7, No. 3, No. 20. ATTORNEY ADMISSIONS.

• Author: By the Hon. G. Ross Anderson Jr. and James A. Patrick III

South Carolina Lawyer

1995.

Vol. 7, No. 3, No. 20.

ATTORNEY ADMISSIONS

20ATTORNEY ADMISSIONSBy the Hon. G. Ross Anderson Jr. and James A. Patrick IIIAttorneys have long been comfortable that their words generally cannot be used against their clients. However, clients can face as evidence against them the things their lawyers write and say--including opening statements.

The basis for attorney admissions lies both in common law and under the Federal Rules of Evidence, particularly Rule 801(d)(2). Federal Rule 801(d)(2) states that the following is not hearsay:

Admission by party-opponent. The statement is offered against a party and is (A) his own statement, in either his individual or a representative capacity or (B) a statement of which he has manifested his adoption or belief in its truth, or (C) a statement by a person authorized by him to make a statement concerning the subject, or (D) a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship...

With South Carolina courts having expressly allowed a lawyer's correspondence as evidence against his client, Long v. Atlantic Homes, 428 S.E.2d 711 (S.C. 1993), all South Carolina lawyers need to beware the danger of inadvertently making an admission.

CATEGORIES OF ADMISSIONS

There are two categories of admissions: judicial and evidentiary. A judicial admission is conclusive. It dispenses with the need for evidence or proof and is binding on a party within the confines, of a particular case. 2 McCormick on Evidence § 254 at 142 (John W. Strong, Ed. 1992); Alan Mansfield, "Lawyer's Admissions," 12 Litigation 39 (1985). Examples of judicial admissions are final pleadings, stipulations and answers to interrogatories. Evidentiary admissions serve only as evidence and can be rebutted or explained. McCormick § 254.

What arises as a judicial admission can become an evidentiary admission. In a Fifth Circuit case, for example, lawyers, arbitrated, then tried, an action concerning fire damage. During arbitration, the plaintiff's lawyer asserted one cause for the fire. When he filed suit, he alleged a completely different cause for the fire. The opposing party introduced, and the judge allowed, the arbitration stance against them as an evidentiary admission. The Fifth Circuit noted that the arbitration pleading was a judicial admission binding the party in the arbitration proceeding but was only an evidentiary admission in the following trial because it was a separate case. Universal Am. Barge v. J-Chem Inc., 946 F.2d 1131, 1142 (5th Cir. 1991), citing State Farm Mut. Auto Ins. Co. v. Worthington, 405 F.2d 683 (8th Cir. 1968). In the same way, a pleading is binding until amended, but statements in the first pleading can be introduced as evidence in the case. Kunglig Jarnvagsstyrelsen v. Dexter & Carpenter Inc., 32 F.2d 195 (2d Cir.), cert. denied, 280 U.S. 579 (1929), quoted in United States v. McKeon, 738 F.2d 26 (2d Cir. 1984).

This article will focus primarily on evidentiary admissions. The Federal Rules of Evidence apply to civil and criminal cases, but there are special, additional concerns in criminal cases.

EVIDENTIARY ADMISSIONS

The hearsay section of the Federal Rules governs evidentiary admissions. Rule 801 has three types of vicarious admissions, and a lawyer's statements can qualify under each type. Fed. R. Evid. 801; see generally Alan Mansfield, "Lawyer's Admissions," 12 Litigation 39 (1985).

The first type of evidentiary admissions are adoptive admissions--FRE 801(d)(2)(B). This rule provides that a statement is not hearsay if it is someone else's statement offered against a party and is a statement of which the party has manifested his or her adoption or belief in its truth. The manifestation is usually a failure to dispute the statement.

The second type--FRE 801(d)(2)(C)--are statements offered against a party, made by a person authorized to make a statement concerning the subject. The third type 801(d)(2)(D)--expands traditional agency law and allows statements made by an agent or servant concerning a matter within the scope of the employment during the course of the employment. One will...