STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

March 4, 1969

Robert A. Amundson, Commissioner of Securities
State Capitol
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 69-24

Propriety of state official or department head acting as counsel in prosecution of violation of state law when such official knows he will testify in such criminal prosecution

Dear Mr. Amundson:

You have requested my opinion in answer to this question:

"Can the Commissioner of Securities represent the state in the prosecution of an alleged securities violation when such Commissioner is a member in good standing of the State Bar of South Dakota and he knows he will be required to testify in a majority of these criminal prosecutions as a witness on behalf of the state?"

At the outset, it is my opinion that under our statutes and under the general rules of conduct, the sole responsibility of prosecuting violation of criminal laws lies solely with the elected state's attorneys of the several counties of this state, subject to the supervisory control over such state's attorneys that is lodged in the Attorney General of South Dakota. Therefore, if your question is in reality, can the Commissioner of Securities of the State of South Dakota solely prosecute violations of the securities laws enacted by the Legislature, the answer, of course, must be NO. An examination of the repeal and reenactment of SDC 55.1922 by Section 17 of Chapter 270 of the Session Laws of 1961, and more especially the second paragraph thereof, substantiates this opinion for therein it is stated:

"He (the Commissioner) shall have power to take such steps as are necessary to cause the arrest and prosecution of all persons guilty of any such violation. It shall be the duty of each state's attorney to prosecute any violation of this chapter in his county, and upon his request or the request of the Commissioner, the Attorney General shall assist in such prosecution."

However, as I understand your question, you are asking whether or not you can assist in such prosecution of the violation of the securities law when in a majority of the cases you, as such Commissioner, will be called upon to testify as a witness on behalf of the prosecution. This, of course, raises a question of legal ethics, which does not involve your right to solely and independently act as a state's attorney or on behalf of the Attorney General.

In commenting on the legal ethics of an attorney acting as an attorney for a party and also a witness for his client, the ethics were summed up in Miller v. Urban, 123 Conn. 331, 195 A 193, 126 ALR 953 in this language:

"On occasions, happily infrequent, when the matter of acting in the dual capacity of counsel and witness has been before us, we have emphatically discountenanced the practice. When counsel becomes a witness in behalf of his client in the same cause on a material matter, not of a merely formal nature such as the attestation or custody of an instrument and the like, and not in any emergency to avoid defeat of the ends of justice, but having knowledge that he would be required to be a witness in time to relinquish the case to other counsel, he violates a highly important rule of professional conduct now formally expressed in the Code of Professional Ethics, Section 21, Practice Book, p. 16 (Connecticut cases cited)."

In State v. Lee (SC 1954) 28 SE 2d 402, 149 ALR 1300 it was pointed out that the general rule is that while a prosecuting attorney is competent as a witness for the prosecution, his appearing as such witness is not approved by the courts where it is made necessary by the circumstances of the case and if he knows beforehand that he will be a necessary witness, he should withdraw and have other counsel prosecute the case.

With this general review of the ethics involved, it is easy to see the application of SDC 36.0107 to the problem presented:

"When an attorney is a witness for his client upon any trial except as to merely formal matters such as the attestation or custody of an instrument or the like, he shall not further participate in such trial. This section shall not apply when such attorney's testimony is offered in answer to evidence received on behalf of the other party and it shall appear to the satisfaction of the court that such attorney had no reason to anticipate the necessity of his being a witness. Neither shall this section apply to state's attorneys and the Attorney General and their deputies when engaged in the discharge of their official duties."

The legal ethics is clear, both from the standpoint of professional ethics and our statute. You are not covered by the exception which relates to state's attorneys and the Attorney General. When you know you must of necessity appear and testify on behalf of the State in a prosecution of a violation of the securities law, and such testimony is as to a material matter, not merely testimony as to formal matters, such as attestation or custody of a particular instrument, or the like you should not participate in such prosecution.

I believe this principle applies to any state official or department head who may be a member in good standing in the State Bar of South Dakota in assisting in prosecutions of criminal violations of the state law.

Respectfully submitted,

Gordon Mydland
Attorney General