A lawyer must, ordinarily, seek to withdraw if subpoenaed to testify about a prior conviction of DWI when lawyer is defending client, charged with DWI, who has a prior conviction.

FACTS

A lawyer represents a client accused of DWI with a prior conviction. Because the same lawyer represented the accused in an earlier DWI proceeding, she is subpoenaed by the prosecutor as a witness to the prior conviction.

QUESTION

May a lawyer ethically continue to defend the accused on a charge of DWI with a prior conviction if the lawyer has been subpoenaed as a witness to prove the prior DWI conviction?

ETHICAL RULES INVOLVED

ER 1.7(b). Conflict of Interest: General Rule

ER 3.7. Lawyer as Witness

OPINION

The subject matter of this inquiry was previously covered by Disciplinary Rules 5-101 and 5-102 of the former Code of Professional Responsibility, and by our Opinion No. 74-29 of October 2, 1974.

Arizona uses a bifurcated proceeding to try defendants charged with DWI with a prior conviction. The new DWI charge is tried first, with no mention of a prior conviction. If the jury finds the defendant not guilty on the new charge, the existence of a prior conviction becomes moot. If the jury finds the defendant guilty, it must determine in a second phase whether there was a prior conviction. The prosecutor normally relies on court records to prove a prior conviction. But sometimes those records may be incomplete or inconclusive, as where the defendant was previously convicted under another name. In such cases, the prosecutor might subpoena a lawyer who represented the accused in an earlier DWI case. The same lawyer may be defending the accused on the present charge.

ER 3.7(a) prohibits a lawyer from acting "as advocate at a trial in which the lawyer is likely to be a necessary witness”. Exceptions are made when the expected testimony "relates to an uncontested issue," or when "disqualification of the lawyer would work substantial hardship on the client."

As ER 3.7 recognizes, serving as witness and advocate in the same case poses serious risks. Sometimes it is the client's interests that are jeopardized. Testimony favorable to one's client may be impeached for bias since the lawyer, as advocate, has an emotional and perhaps a financial stake in the case. Unfavorable testimony may receive undue weight because it came from the client's advocate. And regardless of the content of the testimony, the lawyer can hardly be fulfilling her duties as advocate while she is busy testifying. At other times, the interests jeopardized are those of the adverse party. A jury might give undue weight to an advocate's arguments for her client, for example, because it mistakenly reads the same impartiality into the lawyer's advocacy -as it expects in her sworn testimony.

Despite these risks, ER 3.7 does not prohibit a lawyer who once represented a client on a DWI charge from agreeing to represent the same client on a later charge. Since clients should generally be allowed to have counsel of their choice, a lawyer is not barred just because she might theoretically become a witness against the client.

Once representation begins, no ethical problem arises if the client intends to plead guilty or to stipulate to the prior conviction, for the prosecutor will almost surely not be calling the lawyer as a witness in such cases. Even when the client does not want to plead guilty or stipulate, ER 3.7 generally permits the lawyer to continue to work on the case. For, although the client intends to put the prosecution to its proof as to every element of the charge, including the existence of a prior conviction, it is still not "likely" that the lawyer's testimony will be necessary, since the prosecutor can usually be expected to use other evidence to show a prior conviction. The lawyer should perhaps warn such a client, however, that she may have to withdraw if it later becomes likely that she will be needed as a witness. The risk of having to testify and therefore withdraw, though still small, may be foreseeable; and if withdrawal were to become necessary it would obviously impair the representation. Under ER 1.7(b) the client should therefore be told of this risk and should consent to the representation on these terms before the lawyer continues.

If the lawyer is subpoenaed, she may of course challenge the prosecutor action by, for example, filing a motion to quash. Given the competing values at stake, neither the prosecution nor the defense should be allowed to decide on their own whether counsel will be needed as a witness, and a motion to quash the subpoena would let the court decide the issue before trial.

What arguments might support the motion? While, any knowledge the lawyer may have of a prior conviction would likely relate to a former representation and thus be protected from non-testimonial disclosure by the broad confidentiality rules of ER 1.6, the subpoena would presumably not be open to attack on grounds of attorney-client privilege unless the lawyer's knowledge was based on confidential client communications. (The precise scope of the attorney-client privilege is a legal question which this committee does not purport to answer).

On the other hand, the subpoena may be open to attack on the theory that the prosecutor has or ought to have other ways of proving a prior conviction. Focusing on ER 3.7, the Arizona Supreme Court recently held that a lawyer should not be disqualified in a civil case unless the adverse party who intends to call the lawyer and who seeks to disqualify him on that ground can show that the lawyer's evidence is both necessary to its case and otherwise unobtainable. Security General Life Ins. v. Superior Court, 149 Ariz. 332, 718 P.2d 985 (1986). The Court's major concern in Security General was to protect the right to counsel of one's choice. Since this right is, if  anything, more fundamental for criminal defendants than for civil litigants, a trial court might very well quash a subpoena issued to defense counsel in a case involving a charge of DWI with a prior conviction unless the prosecutor can show both need and lack of alternatives.

However, once the court determines that the subpoena is proper, or the defense decides to concede its propriety rather than moving to quash, then we believe counsel's testimony as a "necessary" witness for the prosecution becomes likely within the meaning of ER 3.7. We also believe that her expected testimony will relate to a "contested" issue (existence of a prior conviction), since the not-guilty plea and the refusal to stipulate will put the state to its proof on the issue. Moreover, if the lawyer were to testify yet stay in the case, she would surely be serving as advocate and witness in the same "trial," despite the bifurcated nature of the proceeding. Even if the lawyer relinquished her advocate's role in the second phase -- perhaps by arranging to have other counsel handle that phase -- she would still be testifying before the same jury in the same matter in which she had been an advocate. To have the lawyer who defended the accused in the first phase turn around and swear that the accused had a prior DWI conviction could be highly prejudicial.

For these reasons, we construe ER 3.7 ordinarily to require the properly subpoenaed defense attorney to seek to withdraw before trial. We must still ask, however, whether special circumstances might sometimes justify the lawyer in not seeking to withdraw.

One possibility is that the client, seeing that his preferred lawyer will otherwise be forced to withdraw, might wish to reconsider his decision not to stipulate to a prior conviction. If the client does reconsider and decides to stipulate, then the reason for the lawyer to testify, and hence to withdraw, disappears. But this situation raises a new problem. If the client asks his subpoenaed lawyer for advice about whether to stipulate and thereby keep the lawyer in the case, the lawyer has a potential conflict of interest. The lawyer may have personal or financial reasons to prefer not to withdraw, and this may materially limit her ability to advise the client. If so, then under ER 1.7(b) she may advise the client only if the client continues to want the advice after she has explained the conflict and if the lawyer herself reasonably believes that the quality of the advice will not be impaired by her own interests.

Assuming that the client still prefers not to stipulate, will client consent justify the subpoenaed lawyer in not seeking to withdraw? Unlike some conflict of interest provisions, ER 3.7 does not expressly allow disclosure and consent to legitimate any representation that would otherwise be improper. But insofar as the Rule applies to our problem, it is meant to protect the client's, not the prosecutor's, interests; and the Comment to ER 3.7 states that "[w]hether the combination of roles [advocate and witness] involves an improper conflict of interest with respect to the client is determined by Rule 1.7 . . . .” (Emphasis added.) As indicated above, ER 1.7(b) does allow a lawyer, after disclosure and client consent, to proceed in an otherwise impermissible conflict situation, but only if the lawyer herself “reasonably believes the representation will not be adversely affected.” In our view, no disinterested lawyer could believe that testifying against her client on a contested issue in a criminal case would not seriously impair the defense. Client consent would not permit a properly subpoenaed lawyer to take the case to trial.

Finally, may the subpoenaed lawyer continue to represent the client in certain cases on the ground that withdrawal “would work substantial hardship on the client?”  Even though the lawyer and her client may have a close and long-standing relationship, as evidenced by the earlier representation on other DWI charges, we believe for several reasons that withdrawal would rarely cause hardship. First, withdrawal may well have been recognized as a possibility all along. Second, the withdrawal motion will come before trial, when the inconvenience and possible prejudice to the client will be relatively slight. Third, withdrawal will usually not have a dramatic financial impact on the client. If the client is indigent and counsel was appointed, new counsel will presumably be appointed as well. If counsel was retained, it will often be possible to substitute other counsel at little or no extra expense. (Another attorney from the original attorney's firm may sometimes be substituted. See ER 3.7(b).) And, finally, in a DWI case no lawyer is likely to be of irreplaceable value to the client by virtue of having either unique legal skills or detailed knowledge of the client's affairs.

While deciding that ER 3.7 normally requires a properly subpoenaed lawyer to seek to withdraw in the cases in question, the Committee does not mean to express any opinion as to how the judge should rule on the lawyer's motion to withdraw, or on the factors the judge should consider in ruling on that motion. We also express no opinion on the circumstances, if any, under which it is appropriate for a prosecutor to subpoena defense counsel. (There is a serious question as to whether a prosecutor may ever subpoena counsel in a case she is presently defending, because to do so interferes with the defendant's right to counsel of his choice. But the ERs do not directly address the issue at present.) Nor do we express an opinion on the circumstances under which a judge should quash a subpoena that has been issued to defense counsel. Nor, finally, do we express an opinion as to the appropriate course of action for judge and prosecutor when a properly subpoenaed defense counsel fails to seek to withdraw. Whether the court should then disqualify the lawyer sua sponte and whether the prosecutor has standing to move to disqualify counsel are questions of law and thus beyond the Committee's purview.

It is accordingly our opinion that, when a lawyer who is defending a client on a charge of DWI with a prior conviction, and who defended the client on an earlier DWI charge, is properly subpoenaed to testify about a prior conviction, the lawyer must ordinarily seek to withdraw before the matter goes to trial. 

Formal opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceeding. This opinion is based on the Ethical Rules in effect on the date the opinion was published. If the rules change, a different conclusion may be appropriate.

© State Bar of Arizona 1987