Attorney as witness does not compel disqualification
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The San Antonio Court of Appeals reaffirmed that the fact that an attorney for one of the parties may also be a witness does not require disqualification under Rule 3.08 of the Disciplinary Rules of Professional Conduct. In this case, counsel for the relator was a potential witness with knowledge of some arguably relevant facts. The Real Party in Interest filed a motion to disqualify Relator's counsel pursuant to Rule 3.08, which the trial court granted. Relator filed a petition for writ of mandamus seeking to vacate the trial court's order. In an opinion by Chief Justice Catherine Stone (left), the court of appeals held that "[t]he fact that a lawyer serves as both an advocate and a witness does not, standing alone, compel disqualification." The court reiterated that (1) the lawyer's testimony must be necessary to establish an "essential fact" on the client's behalf, and (2) the opposing party must demonstrate it would suffer actual prejudice as a result of the lawyer's dual roles as advocate and witness. Because neither was shown in this case, the court granted relator's petition for writ of mandamus. The court's opinion in In re Tipps can be found here.
