Can a criminal defense lawyer tell a non-client witness to get legal advice, and recommend a specific lawyer?

Plain-English summary

A lawyer representing a criminal defendant decided it was in his client's interest to compel several witnesses to testify, whose testimony might or might not be favorable. One or more of those witnesses might inadvertently incriminate themselves and should seek legal advice. The lawyer, recognizing he could not give the witness legal advice, asked whether he had a right or duty to tell the witness to seek advice, and whether he could recommend a particular (unaffiliated, uncompensated) attorney.

The committee concluded that DR 2-104(A), EC 2-3, EC 2-8, and EC 7-16 contemplate that lawyers may, and in certain circumstances should, suggest that a non-client layman seek legal advice, but that under these circumstances it did not rise to a duty. The lawyer therefore has the right, but not the duty, to tell the witness to seek legal advice, on his own initiative or when asked. If he believes doing so would disserve his own client, he should not make the suggestion, or if asked should state only that he cannot discuss the matter; he should not tell the witness not to seek advice when he believes the witness should. On recommending a specific attorney, the committee found no particular problem, but suggested the better practice would be to name more than one attorney, preferably no fewer than three.

Currency note

This opinion was issued in 1977, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Code of Professional Responsibility, which has since been replaced. Treat this page as historical context, not current guidance. Verify against current Rule 4-4.3 before relying on any specific requirement mentioned here.

Common questions

Q: Can a defense lawyer tell a non-client witness to get a lawyer?

A: The opinion concluded he has the right, but not a duty, to do so, whether on his own initiative or when asked by the witness.

Q: What if suggesting it would hurt the lawyer's own client?

A: Per the opinion, he should not make the suggestion, and if asked should say only that he cannot discuss the matter; but he should not tell the witness to avoid seeking advice when he believes the witness should.

Q: Can the lawyer recommend a specific attorney to the witness?

A: The opinion found no particular problem with naming a particular attorney, but suggested the better practice is to name more than one, preferably no fewer than three.

Background and rules framework

The opinion applied DR 2-104(A), EC 2-3, EC 2-8, and EC 7-16 of the former Code of Professional Responsibility, addressing when a lawyer may suggest that a non-client seek legal advice and may recommend counsel. That subject corresponds to Model Rule 4.3 (dealing with an unrepresented person, including advising such a person to secure counsel); the current Florida counterpart is Rule 4-4.3.

Citations and references

Rules of Professional Conduct (as cited, former Code):

• CPR EC 2-3; EC 2-8; DR 2-104(A); EC 7-16 (suggesting a layman seek legal advice; recommending counsel)

See also

• FL Bar Ethics Op. 76-16: Telling a Spouse Estate Rights

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-75-44/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-75-44-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 75-44
June 14, 1977
Advisory ethics opinions are not binding.
An attorney representing a defendant in a criminal case may suggest that a non-client witness seek legal advice. However, if he would be doing his client a disservice by making such a suggestion he should not do so. An attorney suggesting that a non-client layman seek legal advice may properly recommend the services of a particular named attorney, but the better practice would be for the attorney to name more than one attorney.
CPR: EC 2-3; EC 2-8; DR 2-104(A); EC 7-16
Committeeman Stanton stated the opinion of the committee:
A member of The Florida Bar is involved in the following situation.
The attorney represents a defendant in a criminal case. He has talked to a number of witnesses and decided that it is in his client's best interest to compel several of those witnesses to testify. Their testimony may or may not be favorable to the attorney's client.
One (or more) of those witnesses, or the criminal defense attorney, realizes the witness may inadvertently incriminate himself if he testifies and that he should seek legal advice.
The attorney, recognizing he cannot give the witness legal advice, asks:

1. Whether he has either a right or a duty to tell the witness to seek legal advice.
2. If he has either a right or a duty, whether he may properly recommend that the witness seek the services of a particular named attorney. That attorney would not be associated in any way with the inquiring attorney, and the recommendation would be made without expectation or receipt of compensation from the attorney who is recommended.
   As the first question is put to us, either the witness could ask the criminal defense attorney to recommend an attorney or the criminal defense attorney could suggest that the witness seek legal advice.
   DR 2-104(A), EC 2-3, EC 2-8 and EC 7-16 all contemplate that attorneys may suggest, and, in certain circumstances, should suggest that a non-client layman seek legal advice. We do not believe that under the circumstances here this rises to the level of a duty.
   The Committee is of the opinion that the criminal defense attorney has the right, but not the duty, to tell the witness to seek legal advice, either on his own initiative or when asked by the witness. If the attorney believes that he would be doing his own client a disservice by making such a suggestion or by responding to such a question from the witness, the Committee believes that the attorney should not make the suggestion, or, if asked, should state only that he cannot discuss the matter with the witness. Certainly, he should not tell the witness not to seek legal advice when in fact he believes the witness should.
   Answering the second question, the Committee finds no particular problem with that proposal but suggests that in such a situation the better practice would be for the attorney to name more than one attorney and preferably no less than three.