Rarely does one case identify three separate ethical issues worthy of discussion. However, Justice Fader did me a favor in State of Maryland v. James S. Houston, No. 37, September Term, 2025 (March 20, 2026).
The case itself is tragic – James Houston allegedly stabbed and murdered his wife, Nancianne Houston, in August 2024. James Houston claims self-defense. Trial was set for last spring, but three weeks before trial, the Circuit Court for Anne Arundel County disqualified Anne Colt Leitess, the State’s Attorney and lead prosecutor, for the discovery violation of failing to disclose an exculpatory witness statement. An interlocutory appeal followed. After the Appellate Court of Maryland dismissed the appeal for lack of jurisdiction, the Maryland Supreme Court granted certiorari, and Justice Fader published an opinion that focused mainly on when interlocutory appeals are permitted. For my purposes, he also identified three major ethics issues — disclosure violations, attorneys as witnesses, and firewalls.
By way of background, State v. Houston is mostly about when an interlocutory appeal is proper under the collateral order doctrine. The case arose from Houston’s first-degree murder charge from his wife’s August 2024 death. Seven weeks before trial, while working the case up for trial, the state’s attorney interviewed 10 to 15 witnesses. One of the witnesses, a man named Steven Valladares, advised that Houston claims that his wife pulled a knife on him in August 2023, about a year before the murder. From the opinion, it seems no one ever told the defense about the prior incident.
As expected, Houston considered the evidence exculpatory and brought the apparent discovery violation to the court’s attention. A hearing ensued, leading the trial court to (1) find a discovery violation; (2) disqualify the state’s attorney; and (3) institute a firewall within the prosecutor’s office. The State appealed. After analyzing the collateral order doctrine, Justice Fader found the firewall order immediately appealable but not the disqualification order. He reversed and remanded for further proceedings on the firewall.
From an ethics perspective, the discovery violation was an easily spotted issue. Lawyers should produce all discoverable material properly requested by an opposing party. While not all discovery violations rise to the level of an ethics violation, egregious violations are certainly grounds for discipline. See, Atty. Griev. Comm’n of Md. v. Cassilly, 476 Md. 309 (2021) (Prosecutor disbarred for intentionally withholding exculpatory evidence).
Similarly, disqualification certainly raises ethical issues. Disqualification is a drastic remedy because it interferes with a client’s right to choose counsel. Therefore, there is often a high bar to a motion to disqualify, but courts disqualify counsel when warranted. Most often, disqualification results from a conflict of interest, but another oft-cited reason is that a lawyer is a witness. That is what happened in State v. Houston.
In Maryland, Rule 19-303.7 generally precludes attorneys from serving as both an advocate and a witness. Indeed, per Rule 3.7, “an attorney shall not act as advocate at a trial in which the attorney is likely to be a necessary witness unless (1) the testimony relates to an uncontested issue; (2) the testimony relates to the nature and value of legal services rendered in the case; or (3) disqualification of the attorney would work substantial hardship on the client.”
In Houston, the disqualification issue centered on whether the state’s attorney became a witness when she spoke with Valladares and was told by Valladares that Houston previously advised that his wife pulled a knife on her husband a year before her death. And, while Valladares told defense counsel about his call with the state’s attorney, no one from the state did. Thus, at a pretrial hearing, defense counsel argued the failure to advise of the witness statement was a discovery violation.
The trial court agreed, concluding that by interviewing the witness herself without any follow up from detectives, the state’s attorney made herself a witness in violation of Md. Rule 19-303.7. The judge disqualified the state’s attorney as counsel in the case and required “a complete and absolute firewall” between “the assistants who will prosecute this case and” the state’s attorney. The Maryland Supreme Court did not, however, review the disqualification order as the court determined that order was not a collateral order subject to an interlocutory appeal. In a criminal case, interviewing witnesses alone does place a prosecutor at risk for being a witness in an unusual case.
The final ethics issue raised in the case is the “firewall,” which is referred to in the ethics world as “ethical walls.” In Houston, it seems the judge wanted to preclude the state’s attorney from further involvement. But it is not clear whether the ethical wall was a discovery sanction because of the attorney-witness ruling, a conflict not identified in the papers, or some other reason. Therefore, I question whether a firewall was proper.
In part, I question whether the firewall was proper because Rule 3.7 does not prohibit the witness lawyer from working on the case behind the scenes unless the lawyer also has a conflict of interest. In fact, I think it is encouraged. The policy behind Rule 3.7 is to avoid confusion, not to punish clients whose lawyers may also end up as witnesses.
I also question the imposition of the ethical wall because ethical walls are often misunderstood. Ethical walls do not eliminate conflicts of interest, and they do not permit lawyers to be involved in matters in which they have a conflict. Instead, ethical walls protect clients who are already involved in a matter when the client’s law firm becomes associated with a new lawyer and the new lawyer’s affiliation creates a conflict. (See Md. Rule 19-301.10(c).) Under these circumstances, the law protects the clients and the firm already involved by allowing the firm to screen the new lawyer, thereby allowing the representation to continue.
Without question, the tragedy of Houston is Ms. Houston’s murder. But, from a legal ethics perspective, I appreciate Justice Fader’s measured approach to the nuances of the collateral order doctrine and the need to fully speak to the often misunderstood attorney-witness rule.
This article originally appeared in The Daily Record on April 1, 2026.
Goodell DeVries defends various professionals in Maryland, the District of Columbia, and Virginia, including lawyers and law firms. Many of these cases are ethics matters involving Bar Counsel. If you have questions about the above or are a Maryland lawyer facing discipline, please contact us at EthicsHelp@gdldlaw.com.