I have a Driving While Intoxicated Case and a Failure to Stop and Give Information in which a defense attorney is a fact witness (he arrived on the scene). He is also representing the defendant at trial. I have looked at the case law and it seems that the defendant has a right to choose her attorney. Does anyone have any suggestions?

Rule of Professional Conduct 3.08 (Lawyer as Witness) limits an attorney's ability to be both advocate and witness.

At the very least, how about the trial court appointing a stand-by counsel?

JAS

Under Rule 3.08 of the Rules of Professional Conduct does not allow a lawyer to act as a witness unless he can show that his client has given informed consent, he's promptly notified opposing counse, and disqualification will work a substantial hardship on the client. Try to bring your issues up prior to trial to undercut his claim of substantial hardship.

Also, check out Flores v. State, 155 S.W.3d 144 (Tex. Crim. App. 2004), where the prosecution calling the defense attorney resulted in reversible error. You may be able to distinguish this case, but it's good to check it out. There was another, "companion" case that might deserve checking out as well where the same prosecutor called herself as a witness, but I can't think of the name off-hand.

It would be almost impossible for that attorney to cross examine the officer without making some allusions to "so when I saw you do/say "x" ". They are inherently a fact witness if they say anything along those lines. Once that happens, you need to be able to cross examine them on the impressions that they are leaving with the jury, and they are putting themselves in trouble with ethics rules by attempting to advocate and also be a witness. I've had defense try to get me to testify about schedules, plea offers, stuff outside the actual facts and so I have a brief about attorneys being witnesses if you need bits of it. E-mail me and I'll send you some things.

It's unethical.

Yes, you condensed my paragraph into 2 simple words.

See Gonzalez v. State, 117 S.W.3d 831 (Tex. Crim. App. 2003(affirming disqualification of defense counsel on grounds that he is a fact witness in the case)& discussion of advocate-witness rule in TDCAA LEGAL ETHICS AND TEXAS CRIMINAL LAW, pp. 181-198.

The "companion" to Flores mentioned in an earlier post, in which a prosecutor testified in the very case she was trying, is prbably Ramon v. State, 159 S.W.3d 927 (Tex. Crim. App. 2004). A case invloving the advocate-witness rule that was handed down on the same day as Ramos, however, is Flores v. State, 155 S.W.3d 144 (Tex. Crim. App. 2004).