OPINION 399
December 1980

PROSECUTOR AS WITNESS

DR 5-102; DR 9-101.

Question

Is it permissible for a prosecutor in a criminal case to call another prosecutor out of the same office to testify as a witness?

Opinion

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:

  1. If the testimony will relate solely to an uncontested matter.
  2. If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony.
  3. If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or his firm to the client.
  4. As to any matter, if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case.

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.