PROSECUTOR AS WITNESS
DR 5-102; DR 9-101.
Is it permissible for a prosecutor in a criminal case to call another prosecutor out of the same office to testify as a witness?
DR 5-102(A) provides that after an attorney undertakes employment in a case, and 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 in certain instances set forth in DR 5-101(B). These exceptions are:
We hold that DR 5-102 applies to the district attorney's office and to all of those who practice in the same office. The rule would not apply to district attorneys and assistants practicing in another district, in another office. Although each assistant district attorney is not formally a law partner, the same principle would apply because their interest would be in common, just as would be the interest of law partners. Further, under DR 9-101, a lawyer should avoid even the appearance of impropriety. Insofar as Opinion 226 (March, 1959) is in conflict with this opinion, Opinion 226 is hereby overruled.