Rule 3.7 and the Problem of the Lone Wolf

Not a lot of criminal defense attorney’s have partners.  Many, many criminal defense attorneys work in solo practices.  If they have a partner, or an associate (like I am), then they’re both attorneys.

Now, I’m not going to call into question the investigation practices of other lawyers: I don’t know what they are.  But at my firm, we go out of our way to speak with witnesses, take photos of crime scenes, go to the area and get the lay of the land.  My employer, a former investigator for the public defender’s office in Washington D.C. before he became a lawyer, can be very thorough in that regard.

So when my boss and I are going around talking to gangbangers, doctors, crossing guards and shop keepers, social workers and family members, what happens when one of them testify in contradiction to what they told us during the interview process?

Rule 3.7 of the Illinois Rules of Professional Conduct “Lawyer as a Witness” states that a lawyer must withdraw from a case in which he is called, or has a reasonable belief, that he will be called as a witness.

Normally, this isn’t a problem.  But, in the case of solo practitioners in the criminal defense biz,  it sure can be.  For instance, let’s say you go interview a witness to a shooting.  They tell you they were inside, they were listening to loud music or the television, then they heard shots and they went to the window and saw a man running down the street.  This witness doesn’t hurt you that much.  They can only describe what happens after an even occurred, and perhaps have little to contribute.

But during the trial, this person says they heard an argument, they looked outside, saw a man pull out a gun and shoot and then run down the street.  That isn’t what they told you!

You, the lone wolf criminal defense lawyer, are in trouble.  Because now, the only rebuttal witness who can come in and impeach that lying bastard on the stand is…you.  And in order to do that, you have to quit the case.  In the middle of the trial.  And become a witness, not an advocate.  And lose your fees.  And screw your client.

I can’t believe this doesn’t happen more often.  I realize that you always need to bring a “prover” that is, someone who can testify instead of you.  A paralegal, the secretary, hell, anyone, just not you.  But in those small criminal defense firms, time, money and availability can be tight.  If it isn’t easy to do, you might just do it yourself.  And then, when this (admittedly a bit unlikely, but as the case law shows, not impossible) scenario arises you are stuck holding the bag.

Today’s lesson?  Always bring a prover!

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