The Florida Bar
An attorney representing a defendant in a criminal case may suggest that a non-client witness seek legal advice. However, if he would be doing his client a disservice by making such a suggestion he should not do so. An attorney suggesting that a non-client layman seek legal advice may properly recommend the services of a particular named attorney, but the better practice would be for the attorney to name more than one attorney.
June 14, 1977
June 14, 1977
CPR: EC 2-3; EC 2-8; DR 2-104(A); EC 7-16
Committeeman Stanton stated the opinion of the committee:
A member of The Florida Bar is involved in the following situation.
The attorney represents a defendant in a criminal case. He has talked to a number of witnesses and decided that it is in his client's best interest to compel several of those witnesses to testify. Their testimony may or may not be favorable to the attorney's client.
One (or more) of those witnesses, or the criminal defense attorney, realizes the witness may inadvertently incriminate himself if he testifies and that he should seek legal advice.
The attorney, recognizing he cannot give the witness legal advice, asks:
1. Whether he has either a right or a duty to tell the witness to seek legal advice.
2. If he has either a right or a duty, whether he may properly recommend that the witness seek the services of a particular named attorney. That attorney would not be associated in any way with the inquiring attorney, and the recommendation would be made without expectation or receipt of compensation from the attorney who is recommended.
As the first question is put to us, either the witness could ask the criminal defense attorney to recommend an attorney or the criminal defense attorney could suggest that the witness seek legal advice.
DR 2-104(A), EC 2-3, EC 2-8 and EC 7-16 all contemplate that attorneys may suggest, and, in certain circumstances, should suggest that a non-client layman seek legal advice. We do not believe that under the circumstances here this rises to the level of a duty.
The Committee is of the opinion that the criminal defense attorney has the right, but not the duty, to tell the witness to seek legal advice, either on his own initiative or when asked by the witness. If the attorney believes that he would be doing his own client a disservice by making such a suggestion or by responding to such a question from the witness, the Committee believes that the attorney should not make the suggestion, or, if asked, should state only that he cannot discuss the matter with the witness. Certainly, he should not tell the witness not to seek legal advice when in fact he believes the witness should.
Answering the second question, the Committee finds no particular problem with that proposal but suggests that in such a situation the better practice would be for the attorney to name more than one attorney and preferably no less than three.