Does the lawyer-as-witness rule apply to a county attorney who testifies in a criminal case and then continues to prosecute it?

Plain-English summary

The Board of Governors was asked whether Rule 21 of the Rules of Professional Conduct, the lawyer-as-witness rule, applied to county attorneys and their assistants who, in the trial of criminal cases, took the witness stand to testify about matters they knew and then continued to prosecute the case. The inquiry observed that this was a common practice and asked whether the rule applied to prosecutors as it did to other lawyers.

The Board quoted Rule 21, which provided that when a lawyer is a witness for his client, except as to merely formal matters such as the attestation or custody of an instrument, he should leave the trial of the case to other counsel, and that except when essential to the ends of justice a lawyer should avoid testifying in court on behalf of his client. The Board concluded that the rule applied to county attorneys and their assistants in the trial of criminal cases with the same force as it did to other attorneys.

Currency note

This opinion was issued in 1931, decades before Oklahoma replaced its original Rules of Professional Conduct (patterned on the ABA Canons of Professional Ethics) with the Oklahoma Rules of Professional Conduct (adopted 1988) and the later Ethics 2000 revisions. The rule number cited here, Rule 21, belongs to that superseded canon-era code and does not correspond to the current Oklahoma Rules of Professional Conduct. Subsequent rule amendments and 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 Treat this page as historical context, not current guidance.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: Does the lawyer-as-witness rule apply to prosecutors?

A: The opinion concluded that Rule 21 applied to county attorneys and their assistants in criminal cases with the same force as to other lawyers.

Q: What did Rule 21 require of a lawyer-witness?

A: The opinion quoted Rule 21 as directing that a lawyer who is a witness for his client, except as to merely formal matters, should leave the trial to other counsel, and should avoid testifying for his client except when essential to the ends of justice.

Background and rules framework

The opinion applied Rule 21 of the then-current Oklahoma Rules of Professional Conduct, the lawyer-as-witness rule, which was drawn from the ABA Canons of Professional Ethics in force at the time. The concern that a lawyer should not act as both advocate and witness corresponds in current practice to the advocate-witness rule, though the opinion predates the Model Rules and made no such citation.

Citations and references

Rules of Professional Conduct:

• Rule 21 (1929 Oklahoma Rules of Professional Conduct): a lawyer who is a witness for his client, except as to merely formal matters, should leave the trial to other counsel and avoid testifying for his client except when essential to the ends of justice.

See also

• Okla. Bar Ethics Op. 9: Prosecutor as Witness
• NY State Bar Op. 642: Lawyer-Witness Rule in Arbitration
• TX Ethics Op. 363: Firm Lawyer as a Possible Witness

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-8/

Original opinion text

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

Approved October 30, 1931

The Board of Governors is in receipt of the following request for an opinion:

"In the September, 1931, issue of the Oklahoma State Bar Journal, beginning on Page 3 are some opinions on the practice of law which are quite interesting.

I would like to ask your opinion upon another question. It is quite common for County Attorneys and their assistant, in the trial of criminal cases, to take the witness stand and testify as to various things which they may know in connection with the trial of criminal cases, and continue in the prosecution of the case.

Under Rule 21 of the Rules of Professional Conduct, prescribed by the State Bar and approved by the Supreme Court, is a County Attorney or the Assistant County Attorney justified in the continuance in the trial of a case after having testified as a witness therein? In other words, does this rule apply to County Attorneys in the trial of criminal actions the same as to other lawyers in the trial of their cases?"

In response to the request:

Rule 21 of the Rules of Professional Conduct is as follows:

"When a lawyer is a witness for his client, except as to merely formal matters, such as the attestation or custody of an instrument and the like, he should leave the trial of the case to other counsel. Except when essential to the ends of justice, a lawyer should avoid testifying in court in behalf of his client."

It is the opinion of the Board of Governors that the rule applies to County Attorneys and their assistants in the trial of criminal cases with the same force as it does to other attorneys.