I'm trying a bail jumping case on Monday. It's complicated by the fact that the bondsman in the case was also the attorney for the defendant at the time, and he believes he is barred from testifying against his former client because of attorney/ client privilege. We are hoping the judge will compel his testimony, but we need a plan B.
The attorney/ bondsman filed an affidavit of surrender in the case that honestly sets out pretty much all of the elements I need him to testify to. He also filed a motion to withdraw as counsel that has statements that are all I'd need from him on the stand.
I also have a no-show affidavit from the bailiff from that day. He'll testify but I want his affidavit admitted.
The certified copies are self-authenticating.
But how do I get around hearsay? I don't have a business records affidavit or a custodian of records from the lawfirm to testify.
I feel like I've forgotten an easy solution here but I can't find it anywhere.
Rule 503(d)(4) might help with the privilege issue. The privilege doesn't extend to an issue concerning an attested document to which the lawyer is an attesting witness.
Also look at Austin v. State, 934 S.W.2d 672, 674 (Tex. Crim. App. 1996).
That should be similar to your issue about the attorney/client privilege.
Great stuff everyone. Thank you so much for the help!
Don't know if the judge compelled the bondsman-lawyer to testify or not, but if this arises again maybe this will prove useful:
The privilege to prevent disclosure of client-lawyer communication does not apply when the client has breached his duty to his attorney. Tex. R. Evid. 503(d)(3). As stated in Akridge, 13 S.W.3d at 810, the making of the bail bond was "encompassed within the larger legal relationship." Thus, the client breached a duty owed to his attorney.
I note that the Kansas Bar Association has stated: " The acquisition of useful information by a lawyer with a client accused of a crime is entirely different that the information acquired by a bondsman from his customer. A lawyer with a client on which the lawyer has also financially guaranteed an appearance is automatically setting himself up to be a possible witness against his own client in a bond hearing if the client skips out on the bond." KBA Legal Ethics Opinion No. 98-12.
Finally, an attorney may testify "to facts within his knowledge which he gathered from personal observation and not to any communication between client and attorney." Manning v. State, 766 S.W.2d 551, 558 (Dallas 1989).
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