Does Lawyer's Testimony Prohibit Him from Participating the Case ?
Rule 3.08 does not prohibit the lawyer who may or will be a witness from participating in the preparation of a matter for presentation to a tribunal. See TEX. DISCIPLINARY R. PROF'L CONDUCT 3.08 cmt. 8.
In other words, an attorney who is disqualified from representation at trial can continue to participate in the client's case until trial commences; he may continue to assist in pretrial matters such as drafting pleadings, engaging in settlement negotiations, and assisting in trial strategy. See Anderson Producing Inc. v. Koch Oil Co., 929 S.W.2d 416, 422 (Tex. 1996).
To minimize the possibility of unfair prejudice to an opposing party, the rule only prohibits any testifying lawyer who could not serve as an advocate from taking an active role before the tribunal in the presentation of the matter. See id.
Rule 3.08 of the Texas Rules of Professional Conduct of professional conduct states:
(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.
(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. TEX. DISCIPLINARY R. PROF'L CONDUCT 3.08(a), (c), reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G app. a (Vernon 1998) (TEX. STATE BAR R. art. X, 9).
Under rule 3.08, the moving party must also present evidence that the testimony of the lawyer is "necessary" and that it goes to an "essential fact" of the nonmovant's case.
In re A.M., 974 S.W.2d 857, 864 (Tex. App.--San Antonio 1998, no pet.);
May v. Crofts, 868 S.W.2d 397, 399 (Tex. App.--Texarkana 1993, orig. proceeding);
Gilbert McClure Enters. v. Burnett, 735 S.W.2d 309, 311 (Tex. App.--Dallas 1987, orig. proceeding) (stating disqualification is not appropriate under this rule when opposing counsel merely announces his intention to call the attorney as a fact witness; there must be a genuine need for the attorney's testimony that is material to the opponent's client).
Further, if the attorney promptly notifies opposing counsel of his dual role and advises him that disqualification would work a substantial hardship on his client, he may serve as counsel. See Ayres, 790 S.W.2d at 557; In re A.M., 974 S.W.2d at 864.