Based on Actual Facts

 Posted on June 18, 2008 in Uncategorized

Suppose that you were a prosecutor prosecuting a first-time DWI case, and that I was defending it.

Suppose further that the accused's husband, an ex-cop, watched her performing the field sobriety tests at the scene, and would testify that she did fine. That the arresting officer claimed that his in-car video camera wasn't working. That the shop records for the car didn't show any video camera repairs till five months later. That the station video officer expressed doubt on the station video about whether the arresting officer's in-car video was in fact not working. That the accused looked and sounded stone-cold sober on the station video.

Suppose, in other words, that the case was a dog for the State.

Suppose also that, according to the offense report, I had appeared at the scene of the DWI arrest and observed his investigation.

Not having an actual case to prosecute and facing almost certain defeat in trial, you might try to bluff me into taking a plea.

Suppose that that didn't work. You might want to get me of the case, so that my client might be forced to spend more money to hire another lawyer who might be more bluffable. It's understandable. But how?

You might have some murky memory from law school (hey, it was last year, and that's a long time) that I could be disqualified from representing my client because I was a fact witness in the case.

This being a special occasion, and despite being a prosecutor, you would probably do a little legal research. First you'd look at the Texas Disciplinary Rules of Professional Conduct and find Rule 3.08:

A lawyer shall not accept or continue employment as an advocate before a tribunal in a contemplated or pending adjudicatory proceeding if the lawyer knows or believes that the lawyer is or may be a witness necessary to establish an essential fact on behalf of the lawyer's client....

You wouldn't find that particularly helpful, since you've had no inkling that I am or may be a witness necessary to establish an essential fact on behalf of my client.

So you'd read on in the rule:

A lawyer shall not continue as an advocate in a pending adjudicatory proceeding if the lawyer believes that the lawyer will be compelled to furnish testimony that will be substantially adverse to the lawyer's client, unless the client consents after full disclosure.

You'd probably think about subpoenaing me to testify; shame on you. Calling opposing counsel of record as a witness seriously disrupts the counsel's functioning as an advocate and may create a false impression that the advocate was improperly involved in the underlying issues in the litigation. (That's In re Baptist Hospitals of Southeast Texas.) You don't have any reason to think that I could furnish any testimony adverse to my client, and the party seeking disqualification cannot invite the necessary actual prejudice by unnecessarily calling the opposing counsel as a witness. (That's In re Guerra.)

Besides which, since anything that I learned in the course of my representation of my client (which began before I arrived on the scene) was my work product, you couldn't compel me to to talk about it, and in fact I couldn't legally reveal any of it without my client's consent.

Having failed to find any basis for disqualification in the Disciplinary Rules, you might look at caselaw to see if there's any help to be found to get me off the case. You would find that DR 3.08 articulates considerations relevant to disqualification (that's Anderson Producing, Inc. v. Koch Oil Co.). Then you'd run into In re Sanders, which says that the fact that a lawyer serves as both an advocate and a witness does not itself compel disqualification, and In re Chu, which says that you must present evidence that the testimony of the lawyer is necessary and that it goes to an essential element of my client's case.

What would you have? A big steaming bag of nothing, that's what. But you might take a shot at it anyway, on the theory that "the judge isn't going to know what the law is" [actual quote from junior prosecutor in Harris County Criminal Court at Law Number One!]. Supposing that you were right and that I could not explain the law to the judge, and supposing that he disqualified me, what then?

The Court of Appeals is probably going to "know what the law is", and mandamus lies from an erroneous disqualification of counsel. So that'd be one option.

Or my client could try the case pro se under protest (with my help in preserving the error). On this dog, she'd probably beat you. And if she didn't, there's no harm analysis for the violation of an accused's Sixth Amendment right to counsel of his or her choice (that's U.S. v. Gonzalez-Lopez).

Either way, my client gets a trial with me as counsel. So let's just agree now that I'm trying the case, that it's a dog, and that my client is almost certain to be acquitted.

[Edit: ultimately the State saw my point, dismissing the case on the morning of trial.]