Opinion #6. Disqualification of Prosecutor’s Opinion

Issued by the Professional Ethics Commission

Date Issued: October 17, 1979

Facts

The Commission has been asked by a District Attorney in Maine for an advisory opinion regarding the ethical obligations of his office when he or one of his assistant district attorneys may be a witness in a trial to be prosecuted by that office. Our attention has been directed to the recent decision of the Indiana Supreme Court in the case of Goldsmith v. Superior Court of Hancock City, 386 N.E. 2d 942 (1979), in which DR 5‑102 of the Code of Professional Responsibility has been interpreted. That disciplinary rule is the predecessor of Maine Court Rule 3.5(b)(1). The Indiana decision essentially holds that when an assistant in the prosecutor’s office is likely to be a witness, the case may be prosecuted by one of the other attorneys in that office. But, when the elected prosecutor himself becomes a potential witness, his entire staff must be recused.

Opinion

The Commission believes that the decision of the Indiana Supreme Court is only partially persuasive and that the correct rule is that the entire District Attorney’s office should be recused when either the District Attorney or any of his assistants is likely to be called as a witness. They may be replaced for that trial by either the Attorney General’s office or by a special prosecutor appointed by the Court. (The Commission intends in this opinion only to address the requirement to withdraw at trial. No opinion is expressed as to the question of withdrawal when a District Attorney or a member of his staff is to be a witness at an earlier stage of the prosecution.)

Maine Court Rule 3.5(b)(1) provides as follows:

If a lawyer knows, or should know, that he or a lawyer in his firm is likely or ought to be called as a witness in litigation concerning the subject matter of his employment, he and his firm shall withdraw from representation at the trial unless the court otherwise orders. This rule does not apply to situations in which the lawyer would not be precluded from accepting employment under Rule 3.4(j).

The Reporter’s Notes indicate that this rule is “a condensed version of DR 5‑102” from the Code of Professional Responsibility. Since the Indiana case and other precedent relate to this disciplinary rule rather than Maine’s new rule, it is appropriate to compare DR 5‑102(A). It provides:

If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in DR 5‑101(B) (1) through (4).

These rules are obviously very similar, but the Commission notes that if anything, the Maine Rule requires withdrawal in more situations than does DR 5‑102. This is because the Maine Rule applies not only when the lawyer “ought to be called as a witness” but also where that is “likely” to occur.

Even though the Ethical Considerations which are a part of the Code of Professional Responsibility are no longer part of the Maine disciplinary structure, they are helpful in understanding the background of our present rules. EC 5‑9 and EC 5‑10 are explanatory of DR 5‑102 and therefore are relevant to Court Rule 3.5(b)(1):

EC 5‑9 Occasionally a lawyer is called upon to decide in a particular case whether he will be a witness or an advocate. 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.

EC 5‑10 Problems incident to the lawyer‑witness relationship arise at different stages; they relate either to whether a lawyer should accept employment or should withdraw from employment. Regardless of when the problem arises, his decision is to be governed by the same basic considerations.


Where the question arises, doubts should be resolved in favor of the lawyer testifying and against his becoming or continuing as an advocate.

Questions relating to lawyers or members of their firms becoming witnesses in their own case have resulted in many ethics opinions. See, e.g., ABA Formal Opinion 50 (1931), ABA Formal Opinion 185 (1938), and N.Y. State Bar Association, Formal Opinion 353 (1974). In ABA Formal Opinion 339 (1975) the purposes of the lawyer‑witness rules were summarized as follows:

The client’s need for the testimony from a disinterested source, and the client’s entitlement to an advocate whose effectiveness cannot be impaired because of his advocate having been a witness as to contested issues are the foundation of DR 5‑102 and DR 5‑102(B).

Of critical importance to the present inquiry is, of course, whether the Rule should be construed to apply to district attorneys and assistant district attorneys. There are really two questions: (1) Should a prosecutor recuse himself when he is personally likely to be a witness, and (2) should a district attorney and his staff of assistants be treated as a “firm” such that they should all be recused when any one of them is likely to be a witness? A few prior ethics opinions have considered these issues. In Wisconsin Bar Bulletin 55 (1974), the ethics committee of that state determined that Canon 19, the predecessor of DR 5‑102, would apply equally to a district attorney or his assistant. Similarly, in Oklahoma Bar Association 16 (1931), the ethics committee there declared that the prosecutor and his assistant may not testify in cases wherein they are counsel for the state. The State Bar of Texas, in its opinion no. 226 (1959), has declared that a county attorney or his assistant may properly testify in a criminal case if someone else will prosecute the case. (It is unclear whether this opinion contemplates that the “someone else” will be from the same office or not.)

The Commission has no trouble in declaring that a prosecutor (either the elected official or an assistant) should recuse himself when he personally may be a witness in that case. The spectacle of an attorney moving from the counsel table to the witness stand and back again, and perhaps thereafter arguing for his own credibility, is clearly to be avoided if at all possible, whether the attorney is a prosecutor or not.

The second question raised above is more difficult, however. Whether a prosecutor and his staff have the characteristics of a law firm to the extent that they should all be recused when one is likely to testify raises questions of policy and intent of the rules.

The Indiana Supreme Court in Goldsmith reaches its conclusion against recusing the entire prosecutor’s office by distinguishing between this type of practice of law and private practice. The Court declares that the reasons for the rule advanced by Ethical Consideration 5‑9

. . . [relate] largely to the common interest of the attorney‑witness and his law firm in the outcome of the litigation and the appearance of impropriety [which] have no applicability in the case of a multi‑deputy prosecuting attorney’s staff. The relationship between the prosecuting attorney and his sole client, the citizens of the circuit in which he serves, is fundamentally and decisively different from a lawyer and the ordinary attorney‑client relationship.


The lawyers in a law firm have a common financial interest in the case whereas the deputies in a prosecutor’s office have an independent duty by law to represent the State of Indiana in criminal matters. Their relationship to each other, rather than pecuniary, is no more than sharing the same statutory duties; and the interest of one deputy which requires him to testify will ordinarily have no financial or personal impact on the other deputies in the office. Thus, there is no reason to recuse the entire staff of deputies of the prosecuting attorney when one deputy becomes a witness in a case handled by the office.

We disagree. We believe that the reasons for the Rule do apply to a prosecutor’s staff in significant ways. While it is true that prosecutors have no financial stake in the outcome of cases in any direct sense, their continued employment may to some extent depend on their success in Court. Similarly, they may well have public relations or political motivations for winning cases that are at least as compelling as the financial interests of attorneys in private practice. [1] Thus it cannot be assumed that a prosecutor‑witness is unbiased or that bias will not be perceived by jurors. This potential can impair the client’s case just as much when the client is the state as it would when the client is a single individual.

As indicated at the outset, the Indiana Court distinguished between the situations where the potential witness was an assistant prosecutor and where he was the elected prosecutor himself. Goldsmith holds that the whole staff must be recused if the chief attorney is the potential witness. This was on the theory that the prosecutor himself “exercises authority over and speaks through his deputies.” We agree that the elected district attorney should not be a witness in a case prosecuted by one of his assistant district prosecutors, but, as discussed above, we would extend this holding to require that when any member of the District Attorney’s legal staff is likely to be called as a witness then the entire staff of that office should be recused for that case.


Footnote

[1] Since we are talking about criminal cases in this opinion, it should be noted that defense attorneys have no direct financial stake in the outcome either. Contingent fees in such cases are prohibited.


Enduring Ethics Opinion