FLORIDA BAR ETHICS OPINION
June 14, 1977
Advisory ethics opinions are not binding.
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.
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
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.