Let’s face it, the practice of criminal law can get, well, messy. For example, let’s say you’re in court with your client. As he fumbles for a pen to sign a reset slip, a packet of cocaine falls out of his pocket right in front of you and the bailiff. You are now an eyewitness to a new offense. What should you do? Well, under Rule 3.08 of the Texas Disciplinary Rules of Professional Conduct, you can’t be the “lawyer before the tribunal” and be a witness in a case, unless you meet the requirements of the rule. That would apply to the current case in which you representing the client, and the new cocaine possession case that occurred before you. Why both? Because the new case could be used in the punishment trial of the old case, which means under Rule 1.15 (a)(1), you must terminate employment/appointment on the old case and refuse employment/appointment on the new case. I don’t think it’s safe to assume that most of us can see the logic in this approach.
Unfortunately, your ethical quandaries may not necessarily end there. What if you are subpoenaed? Let’s say the state wants you to testify against your old client regarding the packet of cocaine that fell out of his pocket in the middle of court. This is where things get dicey and confusing. The problem stems from the fact that information about your client is protected by attorney‑client privilege. This privilege applies to confidential information and non‑confidential information. Due to the fact that either type of information is protected, you must invoke the concept of confidentiality under the disciplinary rules of professional conduct. This is where many prosecutors and judges may question your sanity, but it is true. Therefore, if the state wants you to be their star witness, you can’t just sing like a canary. Instead, after being sworn in and getting the usual preliminary questions out of the way, you need to invoke Rule 1.05 (c)
(4) to protect yourself from any disciplinary allegations made by your former client. Wait to see if the Judge orders you to. If not, keep your mouth shut. If the Judge does, you should have legal protection from any ethical grievance made by your client, if you choose to testify since Rule 1.05(c)(4) is permissive. Hopefully, this will never happen to you. If it does, remember your client has the right to be protected from you revealing confidential information, including privileged and non‑privileged information. Your duty of confidentiality can be a.) waived by your client, though unlikely or b.) overcome by the Judge ordering you to testify. So, before you start testifying, invoke Rule 1.05 and wait for the Judge to decide. If you ever feel jammed up, you can always call the State Bar of Texas Ethics helpline at (800) 532‑3947. They are always there to help us. I also want to thank State Bar Ethics Attorney Ellen Pitluk for her assistance in helping me with this article. As always, take care, good luck, and have fun!