May 1, 1995
Neither the assistant prosecutor nor any other lawyer in the prosecutor's office is per se disqualified from a matter because a criminal defendant's lawyer intends to call a member of the prosecutor's office as a character witness for the defendant.
References: MRPC 1.7(b), 1.9, 3.7(b); RI-96. CI-1098 is distinguished.
On the morning of an opening of a trial, the defendant's lawyer tells the assistant prosecuting attorney assigned to the case that the defense intends to call another member of the prosecutor's office as a character witness for the defendant.The inquirer asks whether the assistant prosecutor is disqualified from handling the matter, and if so, whether the entire prosecutor's office is disqualified from the matter.
MRPC 3.7(b) states:
"(b)A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9"
The Comment to MRPC 3.7 states in part:
"Whether the combination of roles involves an improper conflict of interest with respect to the client is determined by Rule 1.7 or 1.9. For example, if there is likely to be substantial conflict between the testimony of the client and that of the lawyer or a member of the lawyer's firm, the representation is improper. The problem can arise whether the lawyer is called as a witness on behalf of the client or is called by the opposing party. Determining whether or not such a conflict exists is primarily the responsibility of the lawyer involved. See Comment to Rule 1.7. If a lawyer who is a member of a firm may not act as both advocate and witness by reason of conflict of interest, Rule 1.10 disqualifies the firm also."
MRPC 1.7(b) states:
"(b)A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests unless:
"(1)the lawyer reasonably believes the representation will not be adversely affected; and
"(2)the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved."
RI-96 involves an inquiry by an assistant prosecuting attorney for a county who asked whether an assistant prosecuting attorney may, without compensation, provide legal advice and counseling to the county sheriff's department regarding the handling of particular cases and the preparation of those cases for prosecution by the assistant's own office and, if so, whether it was unethical for the assistant prosecutor to perform sheriff duties on an ad hoc basis if properly "deputized" for a particular matter.
The second question is relevant to our current inquiry. The opinion pointed out that, as far as the performance of sheriff's duties by an assistant prosecutor was concerned, whether a person has authority to arrest is not an ethics question. "Ethically, should the duties of the deputy go beyond mere advisory capacity to active involvement in a field investigation, the prosecutor should be cautioned that the prosecutor may be called as a witness at trial." RI-96. The opinion refers to MRPC 3.7 and then concludes, "accordingly, if a county prosecutor is called as a necessary witness on a contested fact in a matter, another member of the county prosecutor's office may nevertheless serve as an advocate at the trial of the matter."
As RI-96 discloses, MRPC 3.7(b) is directly applicable to the facts of our inquiry. Therefore, unless MRPC 1.7 or 1.9 require a conclusion that MRPC 3.7 is applicable, it is controlling as to this inquiry. MRPC 1.9 addresses conflicts with former clients, and is not applicable under the facts of this inquiry.
MRPC 1.7(a) provides that, "a lawyer shall not represent a client if the representation of that client will be directly adverse to another client, . . . ." Our fact situation does not disclose anything which could lead to the conclusion that representation by the assistant prosecuting attorney of the people of the state of Michigan would be limited by the assistant prosecuting attorney's responsibilities to another client or to any other person, or by the assistant prosecuting attorney's own interests. The Comment to MRPC 1.7 discusses the meaning of "lawyer's own interests" and discloses that it refers to primarily financial or other business-related interests. MRPC 1.7(a) does not preclude the application of MRPC 3.7 to this inquiry.
A question almost precisely the same as the one which this opinion addresses was the subject of an opinion under the former Michigan Code of Professional Responsibility. In CI-1098, defendant's counsel told the assistant prosecutor on the morning of an opening trial for murder that counsel intended to call another assistant prosecuting attorney as a character witness for the defendant. In concluding that the appearance of another assistant prosecutor as a character or reputation witness for the defense does not require recusal of a prosecuting attorney or an assistant, the Committee referred to MCPR DR 5-101(B) which 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:
". . .
"(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."
The opinion pointed out, among other things, the prosecuting attorney is
"a constitutional officer elected by the people and is bound by his oath of office. As the chief law enforcement officer of the County, he establishes procedures and standards by a law under the mandate of the people . . . . A failure to appear by the Prosecuting Attorney or a member of his staff for the people and an appearance by an 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 . . . Because of his election by the people, the Prosecuting Attorney's services have a 'distinctive value' within the terms of DR 5-101(B)(4)."
Although CI-1098 reaches the same result as MRPC 3.7(b), the reasons used in that opinion are no longer factors considered under the current Rules. There is no special status for prosecutors under MRPC 3.7. Therefore CI-1098 is distinguished.
For the reasoning which this Committee adopted in CI-1098, and for the analysis of the current rules to which Michigan lawyers are subject, the Michigan Rules of Professional Conduct disqualify neither the assistant prosecuting attorney assigned to a case nor the entire prosecutor's office where the defense intends to call another member of the prosecutor's office as a character witness for the defendant.
Although the inquiry did not raise the specific question, it should be clear that, if the member of the prosecutor's office to be called as a character witness for a defendant is a lawyer, that lawyer is disqualified from handling the matter for the prosecutor's office. MRPC 3.7(a).