ETHICS OPINION 307
NUMBER 307 1933
Question. In the opinion of the Committee, what is the right and duty of a lawyer toward a witness under the following circumstances:
in investigating the rights of a client, he finds that a necessary witness is cognizant of wrongful acts (probably statutory felonies) committed by others, as a result of which his client has been subjected to unjustifiable charges by a Government bureau. The lawyer believes that the only means for relieving his client is to secure the testimony of the witness to be given in behalf of his client before the bureau. The witness has personal knowledge of the wrongful acts, and is willing to testify. The lawyer believes from his statement that the witness may himself have been a participant either as principal or accessory in the commission of the wrongful acts, testimony concerning which would exonerate his client before the bureau. It is obvious that the witness is not aware that his testimony, if given, may subject him to prosecution as a participant in the crime, which is characterized in the law as a felony. If the lawyer fails to examine the witness, his client will not be exonerated; if he examines the witness, his answers may subject him to indictment as a participant in the felony. If the lawyer apprises the witness of the danger of indictment, he will probably refuse to testify voluntarily, and if examined after such refusal, under subpoena, he will probably refuse to disclose the facts under claim of constitutional privilege. As a result of such refusal, the client will have no other way to prove the facts upon which he relies for his exoneration.
Answer. The Committee is of the opinion that under the circumstances stated in the question, it is the duty of the lawyer to his client to utilize the testimony of the witness, provided he can do so without in any way misleading him or employing any deceit.
The attorney is under no duty to warn the witness.