Attorneys may be deposed as fact witnesses
In a brief memorandum opinion, the Dallas Court of Appeals affirmed that attorneys may be deposed as fact witnesses while counsel in the underlying litigation. Here, the trial court denied a party's motion to compel the deposition of the opposing party's lawyer. The court of appeals stated that "[t]he mere fact that a fact witness is acting as an attorney in the case will not prevent his deposition from being taken when it is otherwise proper." Whether the testimony is privileged or admissible "cannot be determined until his deposition is taken." The opinion does not address the issue of admitting the testimony at trial or calling the attorney as a witness in light of Disciplinary Rule 3.08. Accordingly, the Court granted the petition for writ of mandamus and ordered the trial court to grant the party's motion to compel. The Court's opinion in In re Glassman can be found at this link.
