Rule 3.08 is the Disciplinary Rule relating to when an attorney may be a witness in a case.2 This rule reads as follows:
Rule 3.08. Lawyer as Witness
(a) 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, unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony;
(3) the testimony relates to the nature and value of legal services rendered in the case;
(4) the lawyer is a party to the action and is appearing pro se; or
(5) the lawyer has promptly notified opposing counsel that the lawyer expects to testify in the matter and disqualification of the lawyer would work substantial hardship on the client.
(b) 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.
(c) Without the client’s informed consent, a lawyer may not act as advocate in an adjudicatory proceeding in which another lawyer in the lawyer’s firm is prohibited by paragraphs (a) or (b) from serving as advocate. If the lawyer to be called as a witness could not also serve as an advocate under this Rule, that lawyer shall not take an active role before the tribunal in the presentation of the matter.
Far too many lawyers ignore the proscriptions of the Rule. And they do so at their own peril.
Never mind that the violation of any Disciplinary Rule is grounds to be disciplined by the State Bar.3 There are potentially far more serious consequences that can be attendant upon a violation of the Rule in the course of representing a criminal defendant.
So, how do lawyers representing persons charged with crimes violate the Rule?
There seem to be two primary ways in which criminal defense lawyers violate the Rule. The first way is in interviewing or speaking to witnesses. The second way is in swearing to facts in support of motions. Both are an invitation to potential disaster—potential disaster that is easily avoided.
Why would an attorney interview a witness, or speak directly to a witness? Aside from being cheap and not wanting to spend the money, some lawyers are under the misguided opinion that they are not “permitted to rely solely upon the efforts of an investigator.” That opinion is incorrect because lawyers are entitled to rely upon the efforts of a private investigator.4 However, one must never forget that it is the lawyer’s duty to undertake an independent factual investigation, and this responsibility may not be delegated to an investigator.5
In light of these two related but different opinions, you should be cognizant that this reliance upon the investigator presumes that you, the lawyer, have made sure that the investigator is competent and reliable. And that you have not waited until the last minute to engage the services of the investigator, especially one whom you know to be incompetent or unreliable.
There is a big difference between relying upon your investigator as your “eyes and ears on the street,” versus losing track of your investigator as the lawyer did in Flores. In fact, Flores is a great example of what you cannot do, because not only did the lawyer wait until the eleventh hour to put this PI on the case; the PI had already proven to be unreliable.6
Now, I rely upon investigators and do my very best not to interview witnesses in criminal cases.7 There are two separate reasons for this. The first is having had the unfortunate experience of interviewing a policeman who gave me one version of the facts and then testified to another. Of course, the officer denied having told me “any such thing.” Because of Rule 3.08, I could not take the witness stand and testify against him. Had my investigator gotten the statement from the policeman, he could have taken the stand to impeach the officer.
And while the Ethics Opinions have changed so that an attorney may now ethically record conversations without disclosing the fact of the recording, there remains the problem of proving up the tape if you have to use it during trial. Save yourself the trouble and use a competent investigator.
The second reason that I do not speak to witnesses is that Charles Paternostro and I were subpoenaed before a grand jury in Collin County. Why were we subpoenaed? Because the then-district attorney alleged that we had tampered with a “state” witness by talking to her about our pending case. Never mind that there is no such thing as a “state” witness—there are only witnesses. But far too many district attorneys have this provincial and proprietary view of witnesses. And those district attorneys have no problem in their investigators talking to persons who are or may be defense witnesses; but they absolutely bristle (or worse) when we do our due diligence in preparing for trial.
While nothing ultimately came from that grand jury investigation, I do not ever want to be in that position again. Nor should any attorney ever want to find himself in the position of being subpoenaed to appear in front of a grand jury. Especially when it is so easily avoided through the use of a competent private investigator.
Swearing to facts in an affidavit can be even more dangerous. Just look at the recent indictment against Ana Jimenez in Edna, where it was claimed that she committed aggravated perjury by swearing to facts in support of motions that she filed to take the depositions of witnesses. While the indictment against her was ultimately dismissed, look at the resources it took to accomplish that dismissal. And the grief that she went through in the process.
This is not to suggest that I think that Ana Jimenez deserved to be indicted, or that there was any merit to the indictment. I don’t. And this is not to suggest that I haven’t sworn to facts in an affidavit at times in my career. I have, as we probably all have.
But given the current crop of overzealous prosecutors, why put yourself in the position of being put through what Ana Jimenez was put through? Or given the facility with which some witnesses change their stories, why put yourself in the position of being unable to impeach the witness with a prior inconsistent statement?
According to Greg Willis, Collin County District Attorney, when he was presiding over a trial in County Court in Collin County, “Rules ought to matter.”8 I suggest that one of the Rules that ought to matter is Rule 3.08. Don’t follow it at your own peril.
1. Grateful acknowledgment is given to M. Michael Mowla for his assistance in drafting the final version of this paper, especially the contribution of the Flores case.
2. Govt. Code T. 2, Subt. G App. A, Art. 10, § 9, Rule 3.08
3. Govt. Code T. 2, Subt. G App. A, Art. 10, § 9, Rule 8.04(a)(1)
4. Callahan v. State, 24 S.W.3d 483, 486 (Tex. App.—Houston [1st Dist.] 2000).
5. Flores v. State, 576 S.W.2d 632 (Tex. Crim. App. 1978).
6. Handling a case in this manner will run you afoul of Govt. Code T. 2, Subt. G App. A, Art. 10, § 9, Rule 1.01(b).
7. While I may sit in during my investigator’s interview of a witness, other than pleasantries, I say nothing to and ask nothing of the witness. Any questions that I have are written down and handed to the investigator to ask. At the end of the interview, I retrieve my questions and put them in my file.
8. This comment was made in reference to Rule 902(1)(a), TRE, and my opposing counsel’s attempt to get business records into evidence when they had not been on file the requisite period of time. Opposing counsel argued the mail-box rule relating to filing with the Court Clerk, but he had used FedEx, not the U.S. Mail, to get the records to the Clerk. The records were properly excluded.