Can a prosecutor try a criminal case when the complaining witnesses are other lawyers in the same district attorney's office?

Plain-English summary

An individual was indicted for breach of computer security for obtaining credit information from a credit bureau's files without permission. The complainants named in the indictment were members of the same district attorney's office that would prosecute the case. The Committee was asked whether a lawyer in that office could prosecute when the complainants were also lawyers in the office.

The Committee applied DR 5-101(B) and DR 5-102(A), which bar a lawyer from accepting employment when it becomes obvious that a lawyer in the firm will or ought to be a witness, and noted that Opinion 399 (Feb. 1981) extended those restrictions to a district attorney's office and everyone practicing there. It concluded DR 5-101(B) applied and examined the rule's exceptions. Although the request suggested the complainants' testimony (that they had not given the accused permission to check their files) would be uncontested or a mere formality under exceptions (1) or (2), the Committee found it difficult to say before trial that the testimony would remain uncontested; it might be at the heart of the matter and therefore neither a formality nor uncontested.

The Committee also addressed the hardship exception in DR 5-101(B)(4). It acknowledged the hardship of bringing in outside counsel but concluded that hardship cannot override the defendant's right to a fair trial, citing State v. Whitworth (Mo. Ct. App. 1984), where a defendant's fair-trial right was prejudiced when one member of a prosecutor's office argued the case and another provided critical testimony. Emphasizing that a prosecutor should avoid any case where an implication of partiality might cast a shadow on the office's integrity, the Committee concluded that the prosecuting attorney should request the court to appoint new counsel for the state, which would comply with DR 5-101(B) and DR 5-102(A) and protect both the fair trial and the office's integrity.

Currency note

This opinion was issued in 1987, 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, including the comprehensive 2021 revisions adopted by Texas Supreme Court order, and Texas never adopted the ABA's Ethics 2000 framework. The lawyer-as-witness rule is now Texas Rule 3.08, and prosecutors' special duties are addressed in Rule 3.09. 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: Can a prosecutor try a case when the complaining witnesses work in the same DA's office?

A: The Committee concluded the prosecutor should ask the court to appoint new counsel for the state. DR 5-101(B) and DR 5-102(A), extended to a DA's office by Opinion 399, disqualify a lawyer whose office colleague will testify.

Q: Doesn't the "uncontested testimony" exception let the office prosecute?

A: Per the opinion, not reliably. The Committee found it hard to say before trial that the complainants' testimony would remain uncontested; it might be at the very heart of the matter and therefore not a formality.

Q: What about the hardship of hiring a special prosecutor?

A: The Committee acknowledged the hardship under DR 5-101(B)(4) but concluded it cannot override the defendant's right to a fair trial, so the office should seek appointment of new counsel.

Background and rules framework

The opinion interprets DR 5-101(B) and DR 5-102(A) of the former Texas Code of Professional Responsibility (the lawyer-as-witness disqualification and its imputation within a firm; analogous to ABA Model Rule 3.7), applied to a prosecutor's office, with the prosecutor's duty to avoid the appearance of partiality reflecting concerns now associated with ABA Model Rule 3.8. The analysis turns on whether the office colleagues' testimony fits an exception and on the defendant's fair-trial right.

Citations and references

Rules of Professional Conduct:

• MR 3.7 (lawyer as witness)
• MR 3.8 (special responsibilities of a prosecutor)
• DR 5-101(B), Texas Code of Professional Responsibility (declining employment when the lawyer ought to be a witness)
• DR 5-102(A), Texas Code of Professional Responsibility (withdrawal when a lawyer in the firm will be a witness)

Cases:

• State v. Whitworth, No. 47978 (Mo. Ct. App. E.D. Dec. 11, 1984), fair-trial prejudice when one prosecutor argued and another testified

Other opinions cited:

• Texas Ethics Opinion 399 (Feb. 1981): the witness-disqualification rules apply to a district attorney's office
• Texas Ethics Opinion 430 (June 1986): an office colleague may testify if an exception applies

See also

• TX Ethics Op. 682: Firm Lawyer as Advocate When a Colleague Is a Witness
• TX Ethics Op. 475: Withdrawal When the Opposing Party May Call the Lawyer as a Witness
• TX Ethics Op. 571: Plea-Agreement Waiver of Misconduct and Ineffective-Assistance Claims

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-454/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_454.pdf

Original opinion text

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

QUESTION PRESENTED

May a lawyer member of the District Attorney's Office prosecute a criminal complaint where the complainants are also lawyer members of the District Attorney's Office in the county of prosecution?

STATEMENT OF FACTS

An individual was indicted for breach of computer security when he obtained credit information from a credit bureau's computerized files without the permission of the persons about whom the information was compiled. The complainants in the indictment are members of the District Attorney's Office in the county of prosecution.

DISCUSSION

DR 5-101(B) and DR 5-102(A) state that a lawyer shall not accept employment when he learns or it becomes obvious that a lawyer in his firm will, or ought to, be called as a witness. Opinion 399 (Feb. 1981) held that these restrictions should also apply to a District Attorney's Office and to all those who practice in the same office.

Given the situation described above, it is clear that DR 5-101(B) does indeed apply and it then becomes necessary to examine the exceptions listed under DR 5-101(B) to see if any are applicable. This was well demonstrated in Opinion 430 (June 1986) where it was held that another attorney in the District Attorney's Office would be allowed to testify if the testimony given would fall under one of the four enumerated exceptions. In the letter requesting this opinion it is suggested that the complainant's testimony will be uncontested and/or simply a matter of formality falling under exceptions (1) or (2) of DR 5-101(B). The testimony of the complainants would simply be that they did not give the accused permission as required by law to check their credit files. As simple as this testimony may seem, it is still difficult to tell prior to trial whether or not this testimony would remain uncontested. In fact, it may be at the very heart of the matter at issue making the testimony certainly not a formality and most likely not uncontested.

It was also suggested that to bring in outside counsel to prosecute this case would work a great hardship on the client and the people of Texas. DR 5-101(B)(4). While the hardship should not be disregarded, it cannot be held to override the defendant's right to a fair trial. In State v. Whitworth, No. 47978 (Mo. Ct. App. Eastern Dist. Dec. 11, 1984), the court held that a criminal defendant's right to a fair trial was prejudiced when one member of the state of a county prosecutor's office argued the case against him and another provided critical testimony in that case. The result, said the court, was unfair not only to the defendant but also to the jury. The prosecutor's office should have sought a special prosecutor to try the case.

A prosecutor, as any other attorney, should avoid participating in any case where an implication of partiality might cast a shadow on the integrity of the office. If, in the case at hand, prosecution is pursued by counsel within the District Attorney's Office, such a shadow would most certainly exist.

CONCLUSION

The prosecuting attorney in this case, in order to abide by DR 5-101(B) and DR 5-102(A) should request the court to appoint a new counsel for the state. This would be in complete compliance with DR 5-101(B) and also insure the defendant a fair trial while protecting the integrity of the District Attorney's Office from the shadow of partiality.

Tex. Comm. On Professional Ethics, Op. 454 (1987)