Can a prosecutor in a criminal case call another prosecutor from the same district attorney's office to testify as a witness?

Plain-English summary

The inquiry asked whether a prosecutor in a criminal case may call another prosecutor from the same office to testify as a witness. The Committee answered by applying the lawyer-as-witness rule to the prosecutor's office.

The Committee explained that DR 5-102(A) requires a lawyer to withdraw from the conduct of a trial, and bars his firm from continuing the representation, once it is obvious that he or a lawyer in his firm ought to be called as a witness on the client's behalf, subject to the four exceptions in DR 5-101(B) (testimony on an uncontested matter, on a matter of formality, on the nature and value of the lawyer's services, or where refusal would work a substantial hardship on the client given the lawyer's distinctive value).

Applying that framework, the Committee held that DR 5-102 applies to the district attorney's office and to everyone practicing in the same office, because, although assistant district attorneys are not formally partners, their interests are in common just as partners' interests would be. The rule does not extend to district attorneys and assistants practicing in another district and another office. The Committee added that under DR 9-101 a lawyer should avoid even the appearance of impropriety, and it overruled Opinion 226 to the extent it conflicted.

Currency note

This opinion was issued in 1980, under the former Texas Code of Professional Responsibility, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. The Disciplinary Rules have since been amended, and Texas never adopted the ABA's Ethics 2000 framework. The closest current provisions are Texas Rule 3.08 (lawyer as witness) and the imputation principles in Rule 1.06 and Rule 1.09, with ABA analogs Model Rules 3.7 and 1.10. The "appearance of impropriety" standard from DR 9-101 was not carried forward into the Model Rules or the current Texas rules, so that part of the analysis no longer states a current standard. Subsequent rule changes 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 Treat this page as historical context, not current guidance.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: Is a district attorney's office treated like a law firm for the witness rule?

A: Per the opinion, yes. The Committee held that DR 5-102 applies to the district attorney's office and everyone practicing in it, because their interests are in common as partners' would be.

Q: When does calling a same-office prosecutor as a witness require withdrawal?

A: Under DR 5-102(A), once it is obvious that a lawyer in the office ought to be called as a witness, the trial prosecutors must withdraw unless one of the four DR 5-101(B) exceptions applies.

Q: Does the rule reach prosecutors in other offices?

A: No. The Committee said the rule would not apply to district attorneys and assistants practicing in another district, in another office.

Background and rules framework

The opinion interprets DR 5-102(A) (withdrawal when a lawyer or a lawyer in his firm ought to testify) and its DR 5-101(B) exceptions, and DR 9-101 (avoiding even the appearance of impropriety), of the former Texas Code of Professional Responsibility, treating a district attorney's office as a single firm for imputation. The closest current provisions are Texas Rule 3.08 and the imputation principles in Rules 1.06 and 1.09, with ABA analogs Model Rules 3.7 and 1.10. The analysis turns on the shared interest of lawyers in one prosecutor's office.

Citations and references

Rules of Professional Conduct:

• MR 3.7 (lawyer as witness); MR 1.10 (imputation of conflicts), as the modern analogs
• DR 5-102(A), DR 5-101(B), DR 9-101 (former Texas Code of Professional Responsibility)

Other opinions cited:

• Tex. Comm. on Professional Ethics, Op. 226 (1959): overruled to the extent of conflict

See also

• TX Ethics Op. 447: Firm Representing Co-Defendants When a Member Is a Known Witness
• TX Ethics Op. 430: DA-Office Attorney Representing a Colleague With an Office Witness
• TX Ethics Op. 441: Domestic-Relations Office Conflict and Screening of Colleagues

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-399/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_399.pdf

Original opinion text

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

QUESTION PRESENTED

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?

DISCUSSION

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.

Tex. Comm. On Professional Ethics, Op. 399 (1980)