Can an assistant Commonwealth's Attorney prosecute a perjury case in which his own chief prosecutor must testify about the investigation?

Plain-English summary

A Commonwealth's Attorney's office convicted Defendant A of a drug offense. A then moved for a new trial based on after-discovered evidence supported by an affidavit from Defendant B; at the hearing, B admitted multiple acts of perjury in the affidavit. The office opened a perjury investigation, and B was indicted for perjury. The inquiry asked whether it was unethical for the Commonwealth's Attorney who was involved to testify for the Commonwealth at B's trial when the prosecutor of that trial was the Commonwealth's Attorney's own assistant.

The controlling rules were DR 5-101(B)(1) and DR 5-102(A), which bar a lawyer from accepting or continuing a trial where he or a lawyer in his firm ought to be a witness, except where the testimony relates solely to an uncontested matter or matter of formality with no expectation of substantial opposing evidence. The committee distinguished LE Op. 597 (an assistant prosecutor could testify about a prior adjudication he had handled) on the ground that, there, the prior matter was a conviction, whereas here a perjury indictment is only a preliminary proceeding, not tantamount to a conviction.

The committee concluded that, unless Defendant B entered a guilty plea, the prosecution could reasonably expect the defense to offer evidence in opposition to the Commonwealth's testimony, so it would be improper for the assistant Commonwealth's Attorney to prosecute the perjury matter when the Commonwealth's Attorney in his office should testify. Under the facts, a special prosecutor would have to be appointed to avoid the potential conflict arising from the Commonwealth's Attorney's testimony.

Currency note

This opinion was issued in 1990, under Virginia's former Code of Professional Responsibility (the disciplinary rules it cites), before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. As the committee note observes, current Rule 3.7(c) does not impute a testifying lawyer's disqualification to the firm unless the representation would create a conflict under Rule 1.7 or Rule 1.9. 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 Treat this page as historical context, not current guidance.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: Can an assistant prosecutor try a case in which his chief must testify?

A: Under this 1990 opinion, not on these facts. The committee held it would be improper for the assistant Commonwealth's Attorney to prosecute the perjury case when the Commonwealth's Attorney in his office should testify, absent a guilty plea, and that a special prosecutor would have to be appointed.

Q: Why does it matter that the matter was an indictment, not a conviction?

A: The committee distinguished an earlier opinion (LE Op. 597) on that point: a perjury indictment is a preliminary proceeding, so the defense may reasonably be expected to offer evidence opposing the prosecutor's testimony, which takes it outside the "uncontested matter" exception.

Q: Would a guilty plea change the answer?

A: The committee framed its conclusion as "barring a guilty plea from the defense," indicating that if the defendant pleaded guilty there would be no expectation of substantial opposing evidence.

Background and rules framework

The opinion interpreted former Virginia DR 5-101(B)(1) and DR 5-102(A) (the lawyer-as-witness bar and its uncontested-matter exception). The lawyer-as-witness rule is now Virginia Rule 3.7, which, per the committee note, does not impute the testifying lawyer's disqualification to the firm absent a conflict under Rule 1.7 or 1.9.

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 5-101(B)(1), DR 5-102(A) (Code of Professional Responsibility)
• ABA Model Rule 3.7 (lawyer as witness)

Other opinions cited:

• Virginia LE Op. 487; LE Op. 597 (assistant prosecutor testifying about a prior adjudication he handled, distinguished).

See also

• VA LEO 1359: In-House Counsel as the Only Witness
• VA LEO 1394: Lawyer-Witnesses Taking the Case
• VA LEO 1415: Prosecuting Cross-Warrants
• VA LEO 1387: Lawyer-Fiduciary's Firm and the Estate

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1320.pdf

Original opinion text

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

Committee Opinion
February 27, 1990
LEGAL ETHICS OPINION 1320

ATTORNEY AS WITNESS –
COMMONWEALTH’S ATTORNEY:
COMMONWEALTH’S ATTORNEY
CALLED AS A WITNESS BY
ASSISTANT COMMONWEALTH’S
ATTORNEY PROSECUTING
DEFENDANT WHOSE INDICTMENT
RESULTED FROM INVESTIGATION
HANDLED BY THE
COMMONWEATH’S ATTORNEY.

You have asked the Committee to consider whether it is unethical for the
Commonwealth's attorney who was involved in the prosecution of a defendant
to testify on behalf of the Commonwealth in the trial of a second defendant where the
prosecutor of the second defendant is an assistant of the Commonwealth's attorney. The
following is a summary of the pertinent facts as presented in the inquiry on which the
Committee based its opinion.
A Commonwealth's attorney's office involved in a drug prosecution case against
Defendant A successfully convicted Defendant A of illegal possession of a controlled
substance with intent to distribute. Following the guilty verdict, A filed post-trial
motions, specifically, a motion was filed for a new trial based upon after discovered
evidence supported by an affidavit of Defendant B. At the scheduled hearing to consider
the motion for a new trial, Defendant B made multiple admissions of perjury that were
contained in the affidavit. As a result, the Commonwealth's Attorney's Office opened an
investigation of perjury of Defendant B, and an indictment was returned charging
Defendant B with perjury.
The Committee believes the appropriate and controlling rules relative to your inquiry
are DR:5-101(B)(1) and DR:5-102(A). In particular, DR:5-101(B)(1) provides that a
lawyer shall not accept employment in contemplated or pending litigation, nor shall he
continue in the conduct of a trial if he knows or it is obvious that he or a lawyer in his
firm ought to be called as a witness, except that he may undertake the employment and he
or a lawyer in his firm may testify if the testimony will relate solely to an uncontested
matter or matter of formality and there is no expectation that substantial evidence will be
offered in opposition to the testimony. (See also LE Op. 487)
The Committee previously opined in LE Op. 597 that an assistant Commonwealth's
attorney may testify on behalf of the Commonwealth and against a defendant on the
charge of driving after having been previously adjudicated an habitual offender,
notwithstanding the fact that the assistant Commonwealth's attorney had served as the
prosecutor in the prior adjudicatory proceeding, unless the defendant's identity is
questioned and the Commonwealth's attorney has reason to believe that substantial
evidence will be offered in opposition to his assistant's testimony.

Committee Opinion
February 27, 1990
In the Committee's view, the distinction between LE Op. 597 and the facts of the
instant inquiry is that an indictment of perjury of a defendant returned based on the
results of the Commonwealth's investigation is not tantamount to a conviction since it is a
preliminary proceeding. Unless the defendant enters a guilty plea, the prosecution may
reasonably conclude that the defense may offer evidence in opposition to the
Commonwealth's testimony. Thus, barring a guilty plea from the defense, it would be
improper for the assistant Commonwealth's attorney to prosecute a new matter arising out
of an indictment returned pursuant to the Commonwealth's investigation, when the
Commonwealth's attorney in the assistant prosecutor's office should testify on behalf of
the prosecution. The Committee believes that, under the facts presented in the inquiry, a
special prosecutor will have to be appointed to avoid the potential for a conflict arising as
a result of the Commonwealth's attorney's testimony.
Committee Opinion
February 27, 1990
Legal Ethics Committee Notes. – See Rule 3.7 (c) stating that there is no longer
disqualification of the entire firm when a lawyer must testify, unless representation would
create a conflict under Rule 1.7 or Rule 1.9. Under Rule 3.7(c), this disqualification is
not imputed to the lawyer’s firm unless there is an actual conflict of interest.