Does the lawyer-as-witness rule bar a prosecutor's office from trying a case in which another lawyer from that same office will be a necessary witness?

Plain-English summary

A lawyer asked how RPC 3.7 applied when a lawyer from a prosecuting attorney's office appears as a witness in a case being prosecuted by that office. The committee was of the opinion that the requirement, that a lawyer shall not act as an advocate at a trial in which another lawyer in the same firm is likely to be a necessary witness, does not apply to the prosecutor's office, because such an office does not meet the definition of "law firm" in the Terminology Section of the Rules of Professional Conduct.

The committee noted there may be constitutional or legal questions involved in such a situation that the committee is not in a position to address.

Currency note

This opinion was issued in 1993, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. The official record itself carries an editor's note pointing to State v. Bland, 90 Wn. App. 677 (1998), for a contrary view on this question. Treat this page as historical context, not current guidance. Verify against current rules and case law before relying on any specific rule mentioned here.

Common questions

Q: Does RPC 3.7 disqualify a prosecutor's office when one of its lawyers will testify?

A: The committee concluded the rule's imputation to "another lawyer in the same firm" does not reach a prosecuting attorney's office, because that office does not meet the rule's definition of a law firm.

Q: Did the committee address whether this raises other legal problems?

A: The committee noted there may be constitutional or legal questions in such a situation that it is not in a position to address.

Q: Has a court taken a different view?

A: The official record's editor's note cites State v. Bland, 90 Wn. App. 677 (1998), for a contrary view, so the opinion's conclusion should be read against that case.

Background and rules framework

The opinion applied RPC 3.7 (corresponding to ABA Model Rule 3.7), the lawyer-as-witness rule. Its imputation branch bars a lawyer from acting as advocate at a trial where another lawyer in the same firm is likely to be a necessary witness. The committee's analysis turned on the Terminology Section's definition of "law firm," which it read not to encompass a prosecuting attorney's office, so the imputation did not apply.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 3.7 (lawyer as witness; imputation within a firm); Washington RPC 3.7

Cases:

• State v. Bland, 90 Wn. App. 677 (1998), cited in the official record's editor's note for a contrary view

See also

• WA Ethics Op. 1521: Representing a Former Lawyer of the Opposing Party
• WA Ethics Op. 1497: Successive Government and Private Use of Public Information

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=601

Original opinion text

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

Advisory Opinion: 1520
Year Issued: 1993
RPC(s): RPC 3.7
Subject: Lawyer as witness; lawyer in prosecuting attorney's office testifying in case prosecuted by another lawyer in office

The committee reviewed your inquiry concerning the application of RPC 3.7 to a situation involving a lawyer from the office of the prosecuting attorney appearing as a witness in a case being prosecuted by that office. The Committee was of the opinion that the requirement that a lawyer shall not act as an advocate at a trial in which another lawyer in the same firm is likely to be a necessary witness does not apply to the office of the prosecutor because such an office does not meet the definition of "law firm" in the Terminology Section of the Rules of Professional Conduct. The committee noted there may be constitutional or legal questions involved in such a situation which the Committee is not in a position to address. [Editor's note: See State v. Bland, 90 W App 677 (1998) for a contrary view]