July 20, 1985
A prosecuting attorney, or a member of the prosecutor's staff other than the witness called, is not disqualified when one of the members of the prosecutor's staff is called as a character or reputation witness for a defendant.
References: MCPR DR 5-101(B); CI-713; People v. Lemble, 103 Mich App 220 (1981).
On the morning of an opening of a trial for murder, defendant's counsel tells the assistant prosecuting attorney assigned the case that the defense intends to call another member of the prosecutor's office as a character witness for defendant. The prosecutor moves and is granted an adjournment for the purpose of determining whether a special prosecutor need to be appointed.
The pertinent rules are DR 5-101(B) and DR 5-102(A). DR 5-101(B) states:
"A lawyer shall not accept employment in contemplated or pending litigation 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:
"(1) If the testimony will relate solely to an uncontested matter.
"(2) If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony.
"(3) If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or his firm to the client.
"(4) As to any matter, if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case."
DR 5-102(A) provides:
"If, after undertaking employment . . . a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he [and his firm] shall withdraw . . . except . . . in the circumstances enumerated in DR 5-101(B)(1) through (4)."
The factual question was presented directly to the committee and answered by the Professional and Judicial Ethics Committee in informal Opinion CI-713.
MCPR DR 5-102(A) does not apply to the prosecuting attorney in this instance for a number of reasons:
(1) The prosecuting attorney and appointed assistants have no clients but represent the State of Michigan.
(2) The prosecuting attorney does not share monetarily in the outcome of the court proceedings and can accept no remuneration for services other than the salary set by the Board of Commissioners.
(3) The prosecuting attorney is a constitutional officer elected by the people and is bound by the oath of office. As the chief law enforcement officer of the county, the prosecutor establishes procedures and standards by law under the mandate of the people. A special prosecutor would not necessarily be bound by these policies or subject to the control of the electorate.
(4) A failure to appear by the prosecuting attorney or a member of the prosecutor's staff for the people and an appearance by and assistant on behalf of a defendant as a witness might well be interpreted as an endorsement of defendant and a rejection of the people's case by a jury.
The Court of Appeals approved a refusal to disqualify a prosecuting attorney by a lower court when an attorney from the prosecutor's office testified for the prosecution. The appeals court cited the nature of the prosecutor's offices and the additional cost in time and expense without any increase in the "fairness" provided the defendant as reasons for its decision. People v. Lemble, 103 Mich App 220 (1981), lve den 12/26/81. Because of election by the people, the prosecuting attorney's services have a "distinctive value" within the terms of DR 5-101(B)(4).
In Smith v. Arc-Mation, Inc., 402 Mich 115, 118 (1978), the Supreme Court said:
"The trial court, which also cited GAC Corp, and the Court of Appeals appear to be saying that if any arguable question can be raised regarding the propriety of a lawyer continuing to appear in a case, an order can be obtained disqualifying that lawyer. That constitutes, in our opinion, a dangerous doctrine. It puts in the hands of an adversary the ability to force an opponent to change counsel if the adversary can advance any arguable grounds in support of disqualification. Under this doctrine, no lawyer or firm that participates in drafting an instrument will be able to represent the client if litigation results."
The prosecuting attorney or assistant prosecuting attorney called as a witness may wish to withdraw from the case. Under the circumstances in this opinion, it is not necessary that the assistant prosecuting attorney assigned to the case withdraw. To allow a defense attorney to force withdrawal of counsel under these circumstances might well interfere with effective justice.