BAR ASSOCIATION OF NASSAU COUNTY
COMMITTEE ON PROFESSIONAL ETHICS

Opinion No. 1995-12

(Inquiry No. )

Topics:
Continued representation of criminal defendant where attorney may be called as witness for client in pretrial speedy trial hearing.
Digest:
An attorney may continue to represent a criminal defendant where the attorney may be a witness if withdrawal would work “substantial hardship” on the client or where the attorney’s testimony would not go toward the ultimate fact of guilt or innocence and would not occur before the jury.
Code Provisions:
EC 5-9
EC 5-10
DR 5-101(B)(4)
DR 5-102
Facts Presented:
Inquiring counsel “frequently” appears in District Court criminal matters where “upon occasion a Speedy Trial denial issue is raised by motion. “Generally only the defense attorney and the Assistant District Attorney submit affirmations….” If a hearing is granted, defense counsel is a “necessary and/or only” witness for the defense.
Inquiry:

1. May the attorney testify on behalf of the defendant and continue to represent defendant?

2. May another member of the testifying attorney’s firm represent the defendant?

3. May the testifying attorney or any member of his firm continue representation of the defendant?

Determination:
1. Yes
2. Yes
3. Yes
Analysis:

Canon 5 sets forth, inter alia, the directive that an attorney should not be a witness and an advocate in the same cause. This is the so called “attorney-witness” rule.

EC 5-9 states in relevant part:

An advocate who becomes a witness is in the unseemly and ineffective position of arguing his or her own credibility. The roles of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the cause of another while that of a witness is to state facts objectively.

EC 5-10 expands the above thusly:

In the exceptional situation where it will be manifestly unfair to the client for the lawyer to refuse employment or to withdraw when the lawyer will likely be a witness on a contested issue, the lawyer may serve as an advocate even though he or she may be a witness. In making such a decision, the lawyer should determine the personal or financial sacrifice of the client that may result from the lawyer’s refusal of employment or withdrawal therefrom, the materiality of the lawyer’s testimony, and the effectiveness of the lawyer’s representation in view of his or her personal involvement. (emphasis added)

DR 5-101(B)(4) provides that a lawyer “shall” not act or accept employment “if the lawyer knows or it is obvious that the lawyer ought to be called as a witness on behalf of the client,” except

(4) As to any matter, if disqualification.. would work a substantial hardship on the client because of the distinctive value of the lawyer as counsel in the particular case. (emphasis added)

Accord: DR 5-102

The above rules have been incorporated into case law in People v. Paperno, 54 N.Y.2d 294, 445 N.Y.S. 2d 119 (1981).

CPL § 30.20 sets forth the statutory, as opposed to the constitutional, right to a speedy trial. CPL § 30.3C, sets forth the method of computing time chargeable to either the prosecution or defense in determining whether the right has been denied.

CPL § 170.30(l) (e) and 210.20(l) (g) provide that the motion to dismiss an information (CPL 170.30) or an indictment (2l0.20[l] [g]) must be made prior to commencement of trial or entry of a plea of guilty.

Applying these principles to the inquiries, we conclude that it is not ethically necessary for an attorney to withdraw simply because he or she may be required to testify at a speedy trial hearing.

First, as inquiring counsel notes, and as experience demonstrates, these motions are more often than not decided upon papers and not at a hearing, requiring testimony. Thus, it is impossible for an attorney to know that his or her testimony will be required. Hence there is no necessity for withdrawal.

Second, these motions are generally not decided, nor is a hearing held, until virtually the eve of trial (except in truly extraordinary circumstances) and by that time a considerable amount of time and money will have been spent in counsel’s preparation for trial which will include, but not be limited to, investigation, interviewing witnesses, legal research and developing strategy, and most significantly, developing the necessary rapport with the client. Under these circumstances it is difficult to imagine a situation in which counsel’s withdrawal after the speedy trial hearing would not work a “substantial hardship” (DR 5-105[B] [4]) on the client, not to mention whether the trial court would allow withdrawal at that stage.

Third, any testimony by the attorney would be taken, not before the jury, but before the hearing court alone, who presumably will not be overawed by counsel as a witness or an advocate. The testimony moreover, will not go to the ultimate fact of guilt or innocence, but will deal only with whither the time involved is chargeable to the defense or prosecution.

We conclude therefore that on the facts presented there is no requirement imposed by the Code or case law for counsel to withdraw. We emphasize that this conclusion is limited to the issue of representation on a Speedy Trial hearing and does not signal a determination of the question should counsel be called upon to testify in any other facet of a criminal or civil matter.

(Approved by the Executive Subcommittee on 8/2/95; Approved by the Full Committee on 8/30/95)