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OBA Ethics Counsel

Ethics Opinion No. 9

Approved October 30, 1931

The Board of Governors is in receipt of the following request for an opinion:

"In the September, 1931, issue of the Oklahoma State Bar Journal, beginning on Page 3 are some opinions on the practice of law which are quite interesting.

I would like to ask your opinion upon another question. It is quite common for County Attorneys and their assistant, in the trial of criminal cases, to take the witness stand and testify as to various things which they may know in connection with the trial of criminal cases, and continue in the prosecution of the case.

Under Rule 21 of the Rules of Professional Conduct, prescribed by the State Bar and approved by the Supreme Court, is a County Attorney or the Assistant County Attorney justified in the continuance in the trial of a case after having testified as a witness therein? In other words, does this rule apply to County Attorneys in the trial of criminal actions the same as to other lawyers in the trial of their cases?"

In response to the request:

Rule 21 of the Rules of Professional Conduct is as follows:

"When a lawyer is a witness for his client, except as to merely formal matters, such as the attestation or custody of an instrument and the like, he should leave the trial of the case to other counsel. Except when essential to the ends of justice, a lawyer should avoid testifying in court in behalf of his client."

It is the opinion of the Board of Governors that the rule applies to County Attorneys and their assistants in the trial of criminal cases with the same force as it does to other attorneys.