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WISBAR 1980

Can a former district attorney accept appointment as special prosecutor when he is likely to be called as a witness in the same matter?

Short answer: The opinion concluded that representing the state in both matters created no disqualifying conflict, but the lawyer-as-witness rule bars accepting the appointment if he knows or it is obvious he may be called as a witness, outside the narrow formal-testimony exceptions.

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This page answers the general question as of 1980. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.

Currency note: this opinion is from 1980
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
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Plain-English summary

Opinion E-80-3 addressed a former district attorney who had convicted a defendant of first-degree murder and was later appointed by the court as special prosecutor on the defendant's petition for post-conviction relief. The former DA believed there was a distinct possibility he would be called as a witness by the defendant or the state, because he had personal knowledge of evidentiary facts (not of record) relevant to the grounds for relief; other courtroom personnel were also witnesses to the same facts.

The committee first concluded there was no conflict-of-interest bar: because the former district attorney would represent the same party, the state of Wisconsin, in both matters, a conflict of interests did not preclude him from acting as special prosecutor. It then turned to the lawyer-as-witness problem, reviewing established Wisconsin law. A lawyer actively engaged in the prosecution may not properly become a witness and, if he determines he should testify, should retire from conducting the prosecution (Zeidler v. State); a trial attorney who discovers before trial that he is a material witness on contested facts should withdraw (Interior Woodwork Co. v. Buhler; Estate of Weinert; Southard v. Occidental). The general rule has been modified to allow testimony on noncontroversial facts or formal matters (State v. Ketchum), and trial courts have slight discretion in exceptional cases in the interest of justice (Peterson v. Warren; State ex rel. Dudek; Harris v. State). The committee concluded that the Canons do not permit an attorney to accept employment if he knows or it is obvious that he may be called as a witness, other than as permitted by the four exceptions in DR 5-101(B).

Currency note

This opinion was issued in 1980, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it applies the former Code provisions and Canons cited in the opinion. The lawyer-as-witness question is now governed by SCR 20:3.7 / Model Rule 3.7, and conflicts by SCR 20:1.7 / Model Rule 1.7. 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: Did representing the state in both proceedings create a conflict?

A: No. The committee concluded that because the former district attorney would represent the same party, the state, in both matters, a conflict of interest did not bar him from acting as special prosecutor.

Q: Could he take the appointment knowing he might testify?

A: The committee concluded the Canons do not permit accepting employment if the lawyer knows or it is obvious he may be called as a witness, other than within the four exceptions in DR 5-101(B).

Q: When may a lawyer-advocate testify anyway?

A: The committee noted Wisconsin law allows testimony on noncontroversial or formal matters, and gives trial courts slight discretion in exceptional cases in the interest of justice.

Background and rules framework

The opinion applied the former Wisconsin lawyer-as-witness rule (SCR 20.25) and DR 5-101(B), as developed by a line of Wisconsin Supreme Court decisions, together with conflict-of-interest principles. The current counterparts are the lawyer-as-witness rule (SCR 20:3.7 / Model Rule 3.7) and the conflict rule (SCR 20:1.7 / Model Rule 1.7).

Citations and references

Rules of Professional Conduct:

  • Wis. SCR 20.25 (lawyer as witness); DR 5-101(B) (former Code)
  • Model Rules 3.7, 1.7 (lawyer as witness; conflicts)

Cases:

  • Zeidler v. State, 189 Wis. 44 (Wis. 1926), prosecutor who becomes a witness should retire from the prosecution
  • Southard v. Occidental Life Ins. Co., 31 Wis. 2d 351 (Wis. 1966), testimony on formal or noncontroversial matters
  • State v. Ketchum, 263 Wis. 82 (Wis. 1953), exception for noncontroversial facts
  • Harris v. State, 78 Wis. 2d 357 (Wis. 1976), trial-court discretion in exceptional cases

See also

Source

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