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California Professional Rules of Conduct

Rule 5-210. Member as Witness

A member shall not act as an advocate before a jury which will hear testimony from the member unless:
(A) The testimony relates to an uncontested matter; or
(B) The testimony relates to the nature and value of legal services rendered in the case; or
(C) The member has the informed, written consent of the client. If the member represents the People or a governmental entity, the consent shall be obtained from the head of the office or a designee of the head of the office by which the member is employed and shall be consistent with principles of recusal.

(Rule 5-210 approved by Supreme Court November 28, 1988, operative May 27, 1989. Amendment approved by Supreme Court, effective August 13, 1992, operative September 14, 1992.)

Discussion:

Rule 5-210 is intended to apply to situations in which the member knows or should know that he or she ought to be called as a witness in litigation in which there is a jury. This rule is not intended to encompass situations in which the member is representing the client in an adversarial proceeding and is testifying before a judge. In non-adversarial proceedings, as where the member testifies on behalf of the client in a hearing before a legislative body, rule 5-210 is not applicable.

People v. Donaldson (2001) 93 Cal.App.4th 916, 919
Pursuant to that authority, the State Bar has adopted a rule of professional conduct that prohibits, with few exceptions, a lawyer from acting as both advocate and witness.

In the case at bar, the credibility of the key prosecution witness was the critical issue, as she was the only person who ever gave inculpatory information to law enforcement. Defendant's trial attorney did not object when the prosecutor took the stand to impeach the exculpatory testimony of that witness. Defendant's trial attorney then took the prosecutor on cross-examination and elicited evidence of her personal belief in the credibility of that witness at the time when she gave inculpatory information to law enforcement. In argument, without objection by defendant's trial attorney, the prosecutor expressed her personal belief, as both advocate and witness, in defendant's guilt.

The primary issue here is whether, with respect to the State Bar rule of professional conduct that generally prohibits a lawyer from acting as both advocate and witness, defendant's trial attorney rendered ineffective assistance of counsel. Before reaching that issue, we decide adversely to defendant the secondary issue of whether the record contains sufficient evidence of child endangerment. We find the failure of defendant's trial attorney to protect his client against abrogation of that rule of professional conduct undermines our confidence in the integrity and reliability of the trial. That due process concern persuades us that her claim of ineffective assistance of counsel is meritorious. On that ground, we reverse and remand for a new trial. Consequently, we need not address the other issues defendant raises. (Rules Prof. Conduct, rule 5-210.)

 

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