Must a public defender withdraw from a case in which the defender is likely to be called as a witness?

Plain-English summary

The Alaska Public Defender Agency asked the Committee to clarify when an agency attorney must withdraw from representing a criminal defendant where the attorney will or may be called as a witness. The defendant faced "violation of conditions" charges under AS 12.30.060 for failing to appear at hearings, and the agency attorney who attended those hearings was a potential witness on the notice the defendant had received. The district attorney indicated it might call the agency attorney at trial.

The opinion applied the lawyer-as-witness rules of the Code of Professional Responsibility. Under DR 5-102(A), a lawyer who learns that he or a lawyer in his firm ought to be called as a witness on the client's behalf must withdraw from the trial, subject to limited exceptions. Under DR 5-102(B), a lawyer who may be called to testify other than on the client's behalf may continue until it is apparent the testimony is or may be prejudicial to the client. The opinion explained that intermingling the roles of advocate and witness compromises the lawyer's independent judgment and that any attack on the lawyer's credibility as a witness harms his credibility as an advocate. Because the agency attorney's testimony would relate directly to the defendant's likely defenses, it was potentially prejudicial, so withdrawal was required from the violation-of-conditions cases.

The opinion answered the agency's other questions in the negative. It concluded the agency need not withdraw from the underlying criminal cases out of which the violation charges arose, because there was no indication the attorney would testify there; need not withdraw from a separate criminal case where no violation charges were pending and the likelihood of testimony was insufficient; and need not withdraw from an appeal where briefing and argument were concluded and the court's opinion was pending, both because there was no likelihood the attorney would be called at that stage and because withdrawal then would cause substantial hardship to the defendant.

Currency note

This opinion was issued in 1986, before the Alaska Bar Association's adoption of the 2009 revisions to the Alaska Rules of Professional Conduct (and before Alaska adopted the Rules of Professional Conduct at all; it applies the former Code of Professional Responsibility). The lawyer-as-witness rule is now Model Rule 3.7, which differs from DR 5-102 in its treatment of firm-wide disqualification. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: When must a lawyer withdraw because the lawyer may be a witness?

A: The opinion concluded the lawyer must withdraw when the lawyer ought to be called as a witness for the client (DR 5-102(A)), or when the lawyer may be called by the other side and the testimony is or may be prejudicial to the client (DR 5-102(B)).

Q: Did the public defender have to withdraw from the violation-of-conditions cases?

A: Yes. The opinion concluded the agency attorney's testimony about the defendant's notice of hearings was potentially prejudicial, so withdrawal was required from those cases.

Q: Did the agency have to withdraw from every related case too?

A: No. The opinion concluded the agency need not withdraw from the underlying criminal cases, from a separate case with no pending violation charges, or from an appeal already briefed and argued, because in those matters the attorney was not likely to be called as a witness.

Q: Why does serving as both advocate and witness matter?

A: The opinion concluded that intermingling the roles compromises the lawyer's independent professional judgment and that an attack on the lawyer's credibility as a witness damages his credibility as an advocate.

Background and rules framework

The opinion applied DR 5-102 of the former Alaska Code of Professional Responsibility, the lawyer-as-witness rule analogous to Model Rule 3.7, read against Canon 5's requirement of independent professional judgment. It distinguished DR 5-102(A) (lawyer called for the client) from DR 5-102(B) (lawyer called by the opposing party), and noted the DR 5-101(B) exceptions and the substantial-hardship consideration.

Citations and references

Rules of Professional Conduct (former Code; cf. Model Rules):

• DR 5-102(A) (withdrawal when the lawyer ought to testify for the client) (cf. Model Rule 3.7)
• DR 5-102(B) (withdrawal when testimony for the opposing party may prejudice the client)
• DR 5-101(B) (exceptions to the lawyer-witness bar)

Cases:

• Williams v. District Court, 700 P.2d 549 (Colo. 1985), advocate-witness conflict
• Cottonwood Estates, Inc. v. Paradise Builders, Inc., 624 P.2d 296 (Ariz. 1981), diminished effectiveness in both roles
• National Filtronics, Inc. v. Sherwood Land, 428 So. 2d 11 (Ala. 1983), "ought to be called" and substantial hardship

Other opinions cited:

• ABA Informal Opinion 1446 (1980); Alaska Ethics Opinion 85-3

See also

• AL Ethics Op. 1991-19: Lawyer-as-Witness and Pre-Trial
• AK Bar Ethics Op. 96-5: Lawyer Attesting to a Release

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/86-5.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Ethics Opinion No. 86-5
Withdrawal of an Attorney when the Attorney is a Potential Witness in the
Case He is Handling.
The Alaska Public Defender Agency (the "Agency") has requested that the
Committee clarify under what circumstances it is necessary for an attorney
employed by the Agency to withdraw from the representation of a criminal
defendant in circumstances where the Agency attorney will or may be called as
a witness.
Statement of Facts
The Agency represents defendant in several cases in which defendant is
charged with various unrelated felonies and misdemeanors. Defendant failed to
appear for hearings in several of these cases and as a result was charged with
both felony and misdemeanor violations of AS 12.30.060 (sometimes referred to
herein as the "violations of conditions" cases). The Agency has been appointed
to represent defendant in defending the AS 12.30.060 misdemeanor charges. It
is anticipated that the Agency will be appointed to represent the defendant in
defending the felony charges.
The Agency attorney assigned to represent defendant was informed by
the District Attorney's Office that the Agency attorney will not be called to
testify at the Grand Jury proceedings, but may be called as a witness at
defendant's trial.
The Agency attorney assigned to defendant's underlying cases is a
potential witness at trial with regard to the events which transpired during the
various hearings at which defendant failed to appear and the Agency attorney
attended. The arguments which defendant will raise in defense of the violations
of conditions charges may relate to the notice defendant had of the various
hearings defendant failed to attend and the contacts the Agency had with the
District Attorney's Office with regard to these hearings.
The Agency has asked the Committee to determine:
1. Whether the Agency is required to withdraw from representing
defendant in the violations of conditions cases at which Agency attorneys are
likely to be called as witnesses;
2. Whether the Agency is required to withdraw from the underlying
criminal cases out of which the violation of conditions charges arose;
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3. Whether the Agency is required to withdraw from representing
   defendant in a separate criminal case in which there are presently no violation
   of conditions charges, but in which such charges are potential and the
   Agency's attorneys are potential witnesses with regard to these charges;
4. Whether the Agency is required to withdraw from an appeal on which
   the briefing and argument are concluded and the court's opinion is pending.
   Conclusions
5. The Agency is required to withdraw from representation of defendant
   in cases in which Agency attorneys will or are likely to be called as witnesses;
6. The Agency is not required to withdraw from the underlying criminal
   cases out of which the violation of conditions charges arose;
7. The Agency is not required to withdraw from other case in which there
   are no pending violation of conditions charges;
8. The Agency is not required to withdraw from an appeal on which
   briefing and argument are concluded.
   Discussion
9. Whether the Agency is Required to Withdraw from Representing Defendant
   in the Violation of Conditions Cases at Which Its Attorneys May be Called as
   Witnesses.
   The Agency has indicated to the Committee that the defenses which
   defendant will most likely raise with regard to the violation of conditions
   charges will relate to the notice defendant was given as to future dates and
   times of hearings. Such notice would have been given at the hearings attended
   by the Agency attorney but not by defendant, or received by the Agency
   attorney through contacts with the District Attorney's Office. The Agency
   attorney may be a witness on behalf of defendant in support of his lack of
   notice defenses or on behalf of the prosecution in support of its position.
   Canon 5 of the Code of Professional Responsibility provides that a
   "lawyer should exercise independent professional judgment on behalf of a
   client." In order to safeguard this independent professional judgment, the
   lawyer is required to withdraw from the representation of a client under certain
   circumstances when he is a potential witness in the client's case or when his
   testimony may be adverse to his client.
   DR 5-102(A) provides:
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(A) 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).
A lawyer's ability to exercise independent judgment is obviously placed in
a compromising position if the lawyer's duty as an advocate becomes
intermingled with his role as a witness in the same proceeding. Williams v.
District Court, 700 P.2d 549, 553 (Colo. 1985). The duty of a lawyer as an
advocate is to represent his client zealously within the bounds of the law.
Cannon 7, Model Code of Professional Responsibility. The responsibility of a
witness, on the other hand, is to testify objectively to facts within the witness'
knowledge. A lawyer who intermingles the functions of advocate and witness
diminishes his effectiveness in both roles. See Williams, 700 P.2d at 5532;
Cottonwood Estates, Inc. v. Paradise Builders, Inc., 624 P.2d 296, 299-300
(Ariz. 1981). Any attack upon the lawyer's credibility as witness will necessarily
have a detrimental impact upon the lawyer's credibility as advocate. See also
ABA Informal Opinion 1446 (February 3, 1980); Alaska Bar Ethics Opinion No.
85-3 (August 23, 1985).
DR 5-102(B) provides:
(B) If, after undertaking employment in contemplated or pending litigation, a
lawyer learns or it is obvious that he or a lawyer in his firm may be called as a
witness other than on behalf of his client, he may continue the representation until
it is apparent that his testimony is or may be prejudicial to his client.
DR 5-102(B) addresses the situation where a lawyer may be called to
testify on behalf of the opposing party. For the withdrawal requirement of DR
5-102(B) to apply, it is only necessary that a lawyer "may" be called to testify
for the opposing party. Therefore, because the District Attorney's Office has
indicated that it will potentially call the Agency attorney assigned to
defendant's case to testify at trial, the requirements of DR 5-102(B) are
applicable.
The withdrawal requirement of DR 5-102(B), however, only applies if a
lawyer's testimony is or may be prejudicial to his client. It is sufficient that the
attorney's testimony be only potentially prejudicial for withdrawal to be
required. Because the Agency attorney's testimony will relate to matters which
are directly relevant to any defenses that defendant may raise against the AS
12.30.060 charges, the attorney's testimony is potentially prejudicial to
defendant. Accordingly, the Agency attorney is required to withdraw from
representation of defendant in the violation of conditions cases at which he is
likely to called as a witness.
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It is clear from the provisions of DR 5-102(A) that a lawyer should
withdraw from representation when he ought to be called as a witness for his
client concerning a disputed question of fact relating to the merits of the cause,
if such withdrawal would not work a substantial hardship on the client
because of the distinctive value of the lawyer or his firm as counsel in the
particular case. National Filtronics, Inc. v. Sherwood Land, 428 So.2d 11, 14
(Ala. 1983). The decisive question is not whether the lawyer will be called as a
witness, but whether he ought to be called. People ex. rel. Younger v. Superior
Court of San Bernadino County, 86 Cal. App.3d 180, 150 Cal. Rptr. 156 (1978).
It is also clear from the provisions of DR 5-102(B) that a lawyer should
withdraw when the testimony will be adverse to the client.
2. Whether the Agency is Required to Withdraw from the Underlying Criminal
Cases Out of Which the Violation of Conditions Charges Arose.
There is no indication that the Agency attorney assigned to represent
defendant will be called to testify in the underlying criminal cases out of which
the AS 12.30.060 charges against defendant arose. Accordingly, the Agency
attorney assigned to defendant's case is not required to withdraw from
representing defendant in defending the underlying criminal cases out of which
the violation of conditions charges against defendant arose.
3. Whether the Agency is Required to Withdraw from Representing Defendant
in a Separate Criminal Case in Which There are Presently No Violation of
Conditions Charges But in Which Such Charges are Potential and the Agency's
Attorneys are Potential Witnesses with Regard to These Charges.
For the same reasons stated in response to the Agency's second
question, the Agency is not required to withdraw from representation of the
defendant in a separate criminal trial. At present there are no violations of
conditions charges. There is therefore insufficient likelihood that the Agency
attorney assigned to represent defendant will be called to testify. Moreover, the
Agency has presented no facts to the Committee which suggest that the Agency
attorney assigned to defendant's case will be called to testify in the criminal
case at issue.
4. Whether the Agency is Required to Withdraw from an Appeal on Which the
Briefing and Argument are Concluded and the Court's Opinion is Pending.
Regardless of whether the appeal at issue involved the defense of
defendant with regard to AS 12.30.060 charges or the underlying criminal case
out of which the AS 12.30.060 charges arose, no withdrawal is required.
Withdrawal of the Agency attorney assigned to defendant's case would be
required if the Agency attorney was a potential witness in defendant's defense.
At this late stage in defendant's case, where the court's opinion is awaited on
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appeal, there is no likelihood that the Agency attorney will be called to testify.
Moreover, at this stage, even if withdrawal were relevant because of potential
testimony, the withdrawal would arguably cause substantial hardship upon
defendant. Accordingly, withdrawal is not required.
Adopted by the Alaska Bar Association Ethics Committee this 4th day of
November, 1986.
Approved by the Board of Governors on November 7, 1986.

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