Can a prosecutor or assistant prosecutor testify in a case that another lawyer in the same Commonwealth's attorney's office is prosecuting?

Plain-English summary

The committee considered whether a Commonwealth's attorney or an assistant could testify in a case being prosecuted by the other. It concluded that a Commonwealth's attorney's office is subject to the same restrictions applicable to a private law firm. As a consequence, it would be improper for a Commonwealth's attorney or an assistant to testify in a case which the other is prosecuting, citing DR 5-101 and DR 5-102.

Currency note

This opinion was issued in 1982, under Virginia's former Code of Professional Responsibility, before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. The committee note records that the opinion was presumably overruled by Rule 3.7(c), under which the advocate-witness disqualification is not imputed to the lawyer's firm unless there is an actual conflict of interest. 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 Treat this page as historical context, not current guidance.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 one prosecutor testify in a case another prosecutor in the office is handling?

A: Under this 1982 opinion, no; treating the office like a private firm, the committee found it improper for a Commonwealth's attorney or assistant to testify in a case the other is prosecuting.

Q: Why was the office treated like a private firm?

A: The committee concluded that a Commonwealth's attorney's office is subject to the same restrictions applicable to a private law firm, so the advocate-witness rules applied across the office.

Q: Does this still hold?

A: The committee note states the opinion was presumably overruled by Rule 3.7(c), under which the disqualification is not imputed to the lawyer's firm absent an actual conflict of interest.

Background and rules framework

The opinion applies the former Code's advocate-witness rules, DR 5-101 and DR 5-102, to a public prosecutor's office, imputing one lawyer's witness disqualification across the office as if it were a private firm. The committee note maps the question onto current Virginia Rule 3.7(c), corresponding to ABA Model Rule 3.7, which no longer imputes the advocate-witness disqualification to the firm absent an actual conflict.

Citations and references

Rules of Professional Conduct:

• DR 5-101, DR 5-102 (lawyer as witness) (former Code)
• Virginia Rule 3.7(c) / ABA Model Rule 3.7 (lawyer as witness; imputation to the firm)

See also

• VA LEO 652: A Merged Firm Representing the Former Firm When a Member Must Testify
• VA LEO 729: A Lawyer-Partner Who Will Testify for the Client
• VA LEO 655: A Law Partner as Material Witness in Arbitration

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/0487.pdf

Original opinion text

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

LEGAL ETHICS OPINION 487

CONFLICT OF INTERESTS/ASSISTANT COMMONWEALTH’S ATTORNEY AS WITNESS FOR PROSECUTION.

A Commonwealth's attorney's office is subject to the same restrictions applicable to a private law firm. Consequently, it would be improper for a Commonwealth's attorney or his assistant to testify in a case which the other is prosecuting. [See DR:5-101 and DR:5-102.]

Committee Opinion
September 3, 1982

Legal Ethics Committee Notes. – The LEO was presumably overruled by Rule 3.7(c), under which this disqualification is not imputed to the lawyer’s firm unless there is an actual conflict of interest.