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MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 1988-90
Conflicts: Can Attorney Testify As Witness at Motions Hearing and Then Represent Client at Trial?
You have advised that you were retained to represent a client who had just been arrested and incarcerated for assault and battery, resisting arrest and disorderly conduct. Upon arriving at the Police station, you were permitted to see him briefly but then denied further visitation until the bond hearing the next morning. You subsequently entered your appearance on behalf of your client and further filed a Motion to Dismiss the charges on the basis that your client had been denied access to his attorney during a critical stage of the proceedings against him. By agreement with the Assistant State's Attorney and the presiding District Court judge, a hearing was scheduled on the Motion to Dismiss, at which time it was agreed that you would appear as a witness on the limited issue of whether or arrest and detention period, another attorney would be permitted to enter her appearance for the limited purpose of representing your client at the pre-trial motion hearing, and you would be permitted to continue to represent your client in the event the Motion to Dismiss was denied.
Subsequently, the pre-trial hearing on the motion took place, you testified as a witness, your client was represented by other counsel, and the motion to dismiss was denied. Thereafter, your client's other counsel withdrew her appearance and the case was scheduled for trial. Now, the case has been reassigned to a new Assistant State's Attorney who has filed a Motion to Disqualify you as counsel in this case, presumably on the basis of the fact that you had appeared as a witness at the pre-trial motion hearing citing ""Canon (sic) 5 of the Maryland Rules, DR 5-102."" Apparently, the Court has deferred ruling on the Motion so that you could request an opinion from the Committee on Ethics in this matter. We note that the Court and the Assistant State's Attorney were provided with copies of your inquiry together with the extensive memorandum you have prepared in opposition to the Motion to Disqualify you as counsel in this matter. We have also received a Memorandum in Support of the State's Motion to Disqualify which was recently forwarded to us by the Assistant State's Attorney.
First, the Committee notes, as you have in your memorandum (and as the Assistant State's Attorney now acknowledges in his memorandum), that the Code of Professional Responsibility relied upon by the Assistant State's Attorney in his Motion to Disqualify is no longer applicable in the State of Maryland, having been replaced by the Maryland Rules of Professional Conduct effective January 1, 1987. Since all matters relating to his case took place after January 1, 1987, the Rules of Professional Conduct would apply.
Secondly, the appropriate rule is, as you have also noted, Rule 3.7 entitled ""Lawyer as Witness,"" which provides in pertinent part that ""a lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness."" It seems very clear from your inquiry and extensive memorandum that you have never indicated an intention to appear as a witness at the trial of this matter, nor it it likely that you would be called as a necessary witness. Consequently, it is the opinion of this Committee that Rule 3.7 does not apply.
With the consent of both the Court and the Assistant State's Attorney then assigned to this case you did appear as a witness at a pre-trial hearing. We do not feel, as the Assistant State's Attorney does, that this arrangement ""permitted a Rule of Professional Conduct to be broken."" On the contrary, you were replaced at that hearing by other counsel in order to comply with the requirements of Rule 3.7. That hearing took place, the subject matter thereof has been finally disposed of, and it is our understanding that the testimony you offered at that hearing will not be again offered at the trial either by way of transcript or otherwise. Under the circumstances, we fail to see how the State is prejudiced in any way by your resumption of representation of the accused at the trial of this matter. Consequently, the Committee finds nothing in either the letter or the spirit of Rule 3.7 which would require your disqualification as counsel at the trial by virtue of having acted as a witness at the pre-trial hearing.
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