I respectfully dissent.
The majority holds that rule 2-111(A)(4) of the Rules of Professional Conduct of the State Bar (hereafter rule 2-111(A)(4)) as interpreted by *214our high court in Comden v. Superior Court, 20 Cal.3d 906 [145 Cal.Rptr. 9, 576 P.2d 971], does not apply to the district attorney’s office in the circumstances here presented. This holding means there would be no impropriety in a district attorney’s office trying a criminal case in which one of its deputies will be a witness for the People on a crucial issue although in a like context in civil litigation a private law firm would be required to withdraw from the case. I cannot subscribe to the double standard countenanced by the majority nor am I persuaded by their efforts to justify it.
In my opinion the trial judge did not abuse his.discretion in making the implied determination that Deputy District Attorney Spivey was a witness who ought to testify for the People at the trial and in recusing the district attorney’s office from conducting the prosecution of the case on that ground.
I
Although Comden involved private attorneys and civil litigation, in my view its teachings apply with equal, if not greater, force to prosecutors in criminal proceedings. The district attorney and his deputies, like all attorneys, are accountable under the Rules of Professional Conduct of the State Bar. (Rule 1-100, Rules of Prof. 1 See People v. Superior Court (Greer), 19 Cal.3d 255, 261 [137 Cal.Rptr. 476, 561 P.2d 1164]; People v. Guerrero, 47 Cal.App.3d 441, 448 [120 Cal.Rptr. 732].) “The prosecutor is a public official vested with considerable discretionary power to decide what crimes are to be charged and how they are to be prosecuted. [Citations.] In all his activities, his duties are conditioned by the fact that he ‘is the representative not of any ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is *215as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer.’ ” (People v. Superior Court (Greer), supra, 19 Cal.3d 255, 266, quoting Berger v. United States (1935) 295 U.S. 78, 88 [79 L.Ed. 1314, 1321, 55 S.Ct. 629].) “It is essential that the public have absolute confidence in the integrity and impartiality of our system of criminal justice. This requires that public officials not only in fact properly discharge their responsibilities but also that such officials avoid, as much as is possible, the appearance of impropriety.” (People v. Rhoades, 12 Cal.3d 180, 185 [81 Cal.Rptr. 701], fn. omitted, original italics; People v. Superior Court (Greer), supra, 19 Cal.3d 255, 268.)
The standard of professional conduct of a public prosecutor must, therefore, certainly be no less than that expected of private attorneys in civil litigation. A judicial pronouncement that a public prosecutor’s office conducting a criminal prosecution need not observe the same professional standard governing private attorneys in the conduct of civil litigation does not inspire public confidence in the integrity of our criminal justice system.
The Comden court explains that the- two basic purposes to be served by rule 2-111(A)(4) are to safeguard the client’s interest by minimizing the danger of impeachment of the lawyer-witness for his interest in the litigation and to avoid the appearance of impropriety. I agree that in a criminal prosecution the credibility basis for applying rule 2-111(A)(4) is not as weighty as it is in private civil litigation; the danger in a criminal proceeding is, as the majority correctly points out, not that the jury will doubt the prosecutor-witness’ credibility, but that it will give his testimony undue weight. The first of the stated objectives of the rule therefore does not have the same relevance to a public prosecutor’s office as it does to a private law firm in civil litigation. However, attainment of the second objective, avoidance of an appearance of impropriety which has been termed “at once the most potent and most common reason judicially advanced” for the rule (6 Wigmore, Evidence (Chadbourn rev. ed. 1976) § 1911, pp. 775-776), is the paramount purpose served by the application of rule 2-111(A)(4) to the office of public prosecutor.
The appearance of impropriety sought to be avoided by rule 2-111(A)(4) is that of overzealousness on the part of the lawyer-witness and the law firm of which he is a member. In civil litigation, an appearance of *216excessive zeal diminishes public respect for the profession. In a criminal prosecution, the appearance of excessive zeal on the part of a public prosecutor’s office is more than a matter of concern to the legal profession; it is a matter of public concern because it reflects upon the integrity and impartiality of our system of criminal justice. The “role of the prosecutor” is not “simply a specialized version of the duty of an attorney not to overstep the bounds of permissible advocacy.” (People v. Superior Court (Greer), supra, 19 Cal.3d 255, 266.) Standard 3.1 of the American Bar Association Standards relating to The Prosecution Function stresses the importance of a prosecutor’s avoiding placing himself in a situation that will require him to become a material witness for the People in the prosecution of a case. The commentaiy to standard 3.1 reads in pertinent part: “One of the chief advantages urged in behalf of the separation of barristers and solicitors in the English legal profession is the general rule of avoidance of pretrial contact with witnesses by the advocate. This permits the advocate to maintain the stance in court of one who has not confronted the witness before, except in some situations where he may be present while the solicitor interviews the witness. ...[¶] The Code of Professional Responsibility takes a firm position that a lawyer should avoid testifying in court when he is the advocate. ABA Code Dr 5-102. ‘Although his zeal as a lawyer might not influence his testimony as a witness, an ever critical public is only too apt to place such a construction upon it. A lawyer should avoid not only all improper relationships but should likewise, in order to maintain the profession in public confidence and esteem, avoid all relationships which may appear to be improper.’ ABA Comm. On Professional Ethics, Opinions, No. 50 (1931) (hereinafter cited ABA Opinions). See also Jackson v. United States, 297 F.2d 195, 196 (D.C. Cir. 1961).” (ABA Project on Standards for Crim. Justice, Stds. Relating to the Prosecution Function (1971) std. 3.1, pp. 79, 80.)
The majority refers to the vast and important discretionary powers vested in the district attorney as a reason for declining to apply the Comden holding to that office. Rather than being a reason for exempting the district attorney’s office from rule 2-111(A)(4), the fact that extensive discretionary powers are reposed in that office is precisely why the rule should apply to it so as to avoid any suspicion that those vast powers are not being exercised impartially and objectively.2 As our high court said in *217People v. Superior Court (Greer), 19 Cal.3d 255, at pages 266-267 [137 Cal.Rptr. 476, 561 P.2d 1164]: “Thus not only is a judicial requirement of prosecutorial impartiality reconcilable with executive discretion in criminal cases, it is precisely because the prosecutor enjoys such broad discretion that the public he serves and those he accuses may justifiably demand that he perform his functions with the highest degree of integrity and impartiality, and with the appearance thereof.” (Fn. omitted.)
I would, therefore, hold that rule 2-111(A)(4) and Comden apply to a district attorney’s office.
II
I also disagree with the majority’s holding that the trial judge incorrectly assumed that rule 2-111(A)(4) would come into play if there was a likelihood that Mr. Spivey would be called either by the prosecution or the defense.
Although the judge did not make an express finding that Mr. Spivey ought to be called as a witness on behalf of the People, his comments indicate that his concern was that Mr. Spivey ought and in all likelihood would be required to testify for the People. The judge portrayed Mr. Spivey as “an essential witness in a very crucial issue of the case” and pointed out the ethical problem this posed should the district attorney’s office try the case. I find nothing in the judge’s comments affirmatively showing that he applied an incorrect standard in determining that Mr. Spivey ought to be a witness. In the absence of such showing, it must be presumed that the judge applied the law correctly and all necessary findings to support his order should be implied. Thus, as I view this proceeding, the question whether the record supports the implied finding that Mr. Spivey ought to be called as a witness on behalf of the People is an issue that cannot be avoided. In my opinion the record amply supports the implied finding of the trial judge.
“Whether an attorney ought to testify ordinarily is a discretionary determination based on the court’s considered evaluation of all pertinent factors including, inter alia, the significance of the matters to which he might testify, the weight his testimony might have in resolving such matters, and the availability of other witnesses or documentary evidence *218by which these matters may be independently established. (See Miller Elec. Const., Inc. v. Devine Lighting Co., Inc. (W.D. Pa. 1976) 421 F.Supp. 1020, 1021, fn. 2.)” (Comden v. Superior Court, supra, 20 Cal.3d 906, 913.) Here, there was no abuse of discretion in the judge’s implied determination that Mr. Spivey ought to testify for the People at trial. As the judge observed, Mr. Spivey was an “essential witness” on a “crucial issue.” Manifestly the issue the judge had in mind was whether the pretrial photographic identification procedure employed by Mr. Spivey was impermissibly suggestive and would taint Myers’ in-court identification testimony.
Petitioners contend, however, that Mr. Spivey is not one who “ought to testify” because it is not the People’s intention to present evidence of the pretrial photographic identification as part of its case in chief. That assumption is not dispositive. The test is whether the People ought to call Mr. Spivey as a prosecution witness at some point during the trial. (J. P. Foley & Co., Inc. v. Vanderbilt (2d Cir. 1975) 523 F.2d 1357; U. S. ex rel. Sheldon El. Co. v. Blackhawk Htg. & Plmg. (S.D.N.Y. 1976) 423 F.Supp. 486.) The trial judge could have reasonably anticipated that at trial the defense would object to the admission of Myers’ in-court identification testimony on the ground it was tainted by an impermissibly suggestive pretrial photographic lineup. In that event, Mr. Spivey ought to testify for the People at the admissibility hearing to demonstrate the fairness of the identification procedure he employed. In the event the judge should find that the pretrial identification procedure was fair, the defense may nevertheless attempt to show before the jury the unfairness of the procedures. (People v. Blum, 35 Cal.App.3d 515, 519 [110 Cal.Rptr. 833]; People v. Rodriguez, 10 Cal.App.3d 18, 31 [88 Cal.Rptr. 789]; People v. Neal, 271 Cal.App.2d 826, 832 [77 Cal.Rptr. 65].) Should that occur, it would be reasonable to say that Mr. Spivey ought to testify for the People in rebuttal to counteract the claimed unfairness of the pretrial identification procedures.
Petitioners contend that Mr. Spivey need not testify for the People at the trial because he was not the only one who heard the statements made by Myers during the two preindictment interviews and, further, that a tape recording is available relative to the first interview. The presence of others at the two interviews and the availability of the tape recording do not perforce obviate the necessity of Mr. Spivey’s testimony at trial.
In Comden v. Superior Court, supra, 20 Cal.3d 906, a member of the law firm retained as plaintilf’s trial counsel heard statements which *219would sustain plaintiff’s claim for relief. The court held that the fact that others also heard the statements did not compel the court to deny the motion to disqualify; the court stated: “While others present at the meeting also reported hearing the statements described by Greene [the attorney], it cannot be said that under the facts the trial court could only have concluded Green’s testimony would not be necessary at trial, . . .” (Id., at p. 913, original italics.) In the same vein, it cannot be said on the record before us that the trial judge could only have concluded that Mr. Spivey’s testimony would not be necessary because other persons were present at the two interviews with Myers. Mr. Spivey was the one who prepared and conducted the photographic lineup. Neither the tape of the first interview nor recounting by others of the statements made at the two interviews would reveal how Spivey prepared and conducted the lineups.
Predicated solely upon the availability of a tape recording of the first interview, the Attorney General contends that exception (b) of 2-111(A)(4) is apposite, the theory apparently being that Mr. Spivey would merely give foundational testimony that the tape recording is an accurate representation of what was said at the interview.3 The contention overlooks the fact that the second interview with Myers was not recorded and furthermore, as I have explained, the tape recording would not reflect the photographic identification technique used by Mr. Spivey. In other words, Mr. Spivey’s testimony will relate not only to what was said, but to what was done during the interviews. His testimony can in no sense be deemed mere “formality.”
Neither the Attorney General nor the district attorney seeks to invoke exception (d) of the rule which permits the attorney or the law firm to conduct the trial if disqualification would “work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case.” Although not articulated in terms of exception (d), in Comden v. Superior Court, supra, 20 Cal.3d 906, the applicability of the principles underlying that exception appears to have been the focal point of the disagreement between the majority and the dissent. The dissent was of the view that since Comden involved a nonjury equity proceeding, failure of the law firm to withdraw would not undermine the purposes of rule 2-111(A)(4) whereas disqualification of the firm would unreasonably interfere with the client’s right to be represented by counsel of her choice and work a substantial injustice upon her. Here, petitioners make no claim that recusal would work a *220substantial hardship on the People. Furthermore, unlike Comden, we are here concerned with a criminal prosecution involving a right to jury trial.
Petitioners express concern that if the recusal order is upheld it might invite attempts to recuse a district attorney whenever a trial deputy has interviewed prospective witnesses in the normal course of trial preparation because the deputy may give impeaching testimony at trial in the event the witness changes his story or recants on the witness stand. The fear is groundless. Disqualification of the district attorney simply because a trial deputy interviewed prospective witnesses in the normal preparation for trial would be contrary to both the letter and spirit of rule 2-111(A)(4). The rule requires withdrawal of an attorney “when he knows or should know” that he or a lawyer in his firm ought to be called as a witness on behalf of his client. Since it would be purely speculative whether a deputy district attorney who has interviewed witnesses in preparation for trial would be required to give impeaching testimony, it would be an abuse of discretion to say in such circumstances that the district attorney “knows or should know” that the deputy “ought” to be called as a witness on behalf of the People at trial. Furthermore, application of rule 2-111(A)(4) to disqualify an entire law firm simply because trial counsel interviewed prospective witnesses in preparation for trial would conflict with an attorney’s duty to his client. A trial lawyer who does not interview key prospective witnesses before trial could be remiss in the performance of his professional obligations to “faithfully discharge the duties of an attorney at law to the best of his knowledge and ability.”4 (Bus. & Prof. Code, § 6067 [oath of an attorney].) If rule 2-111(A)(4) could be invoked in the situation described, the only lawyer who would not be disqualified from trying the case would be a slipshod practitioner who failed to properly prepare for trial. The rule does not contemplate such an absurd result.
The present case does not involve the normal pretrial interview of prospective witnesses by a trial lawyer. Deputy District Attorney Spivey was involved in an important aspect of the criminal investigative process normally conducted by the police or other investigative authorities. The *221problem arises, not because there was any impropriety in the deputy’s participation in the investigation, but because he ought to testify for the People at trial concerning the investigation.
For the foregoing reasons, I would hold that the trial judge did not abuse his discretion in recusing the district attorney. I would modify the order below by striking therefrom that portion which directs the Attorney General to prosecute the criminal charges5 and as so modified would deny the peremptory writ and discharge the order to show cause.
The petition of the real parties in interest for a hearing by the Supreme Court was denied January 24, 1979.
Rule 1-100 of the Rules of Professional Conduct of the State Bar provides: “These rules of professional conduct, adopted by the Board of Governors of the State Bar of California, pursuant to the provisions of the State Bar Act, shall become effective upon approval by the Supreme Court of California. When so approved, these rules shall be binding upon all members of the State Bar, and the wilful breach of any of these rules shall be punishable as provided by law. Nothing in these rules is intended to limit or supersede any provision of law relating to the duties and obligations of attorneys or the consequences of a violation thereof The prohibition of certain conduct in these rules is not to be interpreted as an approval of conduct not specifically mentioned. These rules may be cited and referred to as ‘Rules of Professional Conduct of the State Bar of California.’ Wherever in these rules reference is made to a law firm or association, such reference shall also apply to a law corporation.” (Italics supplied.)
Neither the Attorney General nor the district attorney contends that application of rule 2-111(A)(4) of the Rules of Professional Conduct would conflict with “any provision of law” relating to their respective duties and obligations.
The majority suggests that the portion of rule 2-111(A)(4) pertaining to" continued representation of a client by the law firm of the lawyer who ought to testify was intended to apply only to private law firms and not to a public law office. However, the majority holds that Mr. Spivey violated the very same subdivision of rule 2-111(A)(4) at the pretrial proceedings when he testified as a witness and resumed his role as an advocate *217thereafter in those proceedings. In other words, according to the majority, subdivision 4 is somehow partly, but not entirely, applicable to public law offices. I have difficulty in following that split interpretation of the rule.
Obviously exceptions (a) and (c) are not pertinent to the facts of this case.
Standard 3.1, American Bar Association Project on Standards for Criminal Justice (1971) Standards Relating to The Prosecution Function recommends that witness interviews be conducted in the presence of a third person who could be used as an impeaching witness should this become necessary. Subdivision (f) of the standard provides: “(f) The prosecutor should avoid interviewing a prospective witness except in the presence of a third person unless the prosecutor is prepared to forego impeachment of a witness by the prosecutor’s own testimony as to what the witness stated in an interview or to seek leave to withdraw from the case in order to present his impeaching testimony.”
The Attorney General contends that the trial court exceeded its jurisdiction when it directed his office to conduct the prosecution of the charged offenses. I agree. Neither section 12550 nor section 12553 of the Government Code authorizes a trial court to direct the Attorney General to assume the conduct of a criminal prosecution when a disability prevents the district attorney from permanent participation in the case. Rather, upon disqualification of the district attorney, Government Code sections 12550 and 12553 commit to the discretion of the Attorney General the decision whether to assume the prosecution of the case, including whether to appoint special counsel to prosecute the matter. (Toland v. Ventura, 135 Cal. 412, 414-415 [67 P. 498].) Toland v. Ventura, supra, is illustrative. There, the district attorney was disqualified from conducting the criminal prosecution because of the existence of a prior attorney-client relationship between him and the accused. (Id., at p. 413.) The court held that when the district attorney is disqualified from prosecution of a criminal case, “the duty of seeing that there is a proper prosecution seems to devolve on the attorney-general; and if the court has any duty in the premises it is to inform the attorney-general of the condition.” (Id., at pp. 414-415.)