OCGA ยง 24-9-25. See Bryan v. Barnett, 205 Ga. 94, 98(5) ( 52 S.E.2d 613) (1949); Shelton v. State, 206 Ga. App. 579, 580 ( 426 S.E.2d 69) (1992). 5. Martinez argues that the court erred in denying her motion to disqualify the Housing Authority's trial counsel, G.E. Massafra, and in prohibiting her from calling him to testify.
[i]t has been uniformly recognized by the courts which have been presented with the question, that requiring the defendant's attorney to testify against him on a contested, material issue so diminishes the persuasive force of his advocacy on behalf of the defendant in the eyes of the jury that the defendant is denied his right to effective assistance of counsel.Shelton v. State, 206 Ga. App. 579, 580 ( 426 S.E.2d 69) (1992). Here, Thorne undeniably was deprived of effective assistance.
Even if considered "communications," the photographs were not privileged; Johnson instructed his attorney to use them as he felt proper, an instruction that necessarily authorized Johnson's attorney to disclose their existence and content to others. Shelton v. State, 206 Ga. App. 579, 580 (1) ( 426 S.E.2d 69) (1992). It is true, as pointed out by Johnson, that he did not specifically authorize his divorce attorney to disclose the photographs to the district attorney.
(Citations and punctuation omitted.) Shelton v. State, 206 Ga. App. 579, 580 ( 426 S.E.2d 69) (1992). In the instant case, there is no evidence that McKenna made the communications to his attorney for the purpose of having the attorney impart them to others.
Future crimes include a defendant's intent to perjure himself on the witness stand, advance a false claim or document, or tamper with adverse witnesses. See Shelton v. State, 206 Ga. App. 579, 580-81 (1992) (it was counsel's duty to prevent defendant, if possible, from testifying falsely, and if defendant nevertheless testified falsely regarding what information was given by counsel during police interrogation, counsel would be obligated to so advise the court and seek to withdraw, or else be party to fraud); 7A C.J.S. ATTORNEY CLIENT ยง 268 (Sep. 2011) ("[i]f the attorney becomes aware of the fact that the claim which he or she is urging for his or her client is fraudulent and fictitious, or if he or she or a member of his or her firm ought to be called as a witness on behalf of his or her client, the attorney has cause to withdraw.") (footnotes omitted); People v. Kahn, 906 N.Y.S.2d 782, 2010 WL 161430 at * 8 (N.Y. Sup. Jan. 15, 2010) (attorney could testify against client, ahead of client's criminal trial for assaulting his wife, about client's intent to commit witness tampering); People v. DePallo, 96 N.Y.2d 437, 442 (2001) (the "intent to commit a crime is not a protected confidence
Accordingly, we agree with, and adopt, the rule set forth in Williams v. District Court, El Paso County, 700 P.2d 549 (Colo. 1985), that a prosecutorial subpoena served on an accused's attorney can withstand a motion to quash only if the prosecution demonstrates on the record that the defense attorney's testimony will actually be adverse to the accused, that the evidence sought to be elicited from the attorney will likely be admissible at trial under the controlling rules of evidence, and that there is a compelling need for such evidence which cannot be satisfied by some other source. See, also, Ullmann v. State, 230 Conn. 698, 647 A.2d 324 (1994) (in criminal case, compelling need test applies to call attorney professionally involved in case); Shelton v. State, 206 Ga. App. 579, 426 S.E.2d 69 (1992); Perez v. State, 474 So.2d 398 (Fla. App. 1985). Although the record contains self-serving statements by the prosecuting attorneys involved in these proceedings that "it is necessary" to make inquiry of defense counsel and that, otherwise, there would be "no way," or at least it would be "very, very difficult for the State" to prove its case, there is no evidential showing that any effort other than subpoenaing Hays was made. Under that state of the record, it cannot be said that the requirements of the foregoing test have been met.
Although the issue of whether a party can call opposing counsel to testify is ordinarily within the discretion of the trial judge, Ullmann v. State, 230 Conn. 698, 647 A.2d 324, 335 (1994), in exercising that discretion during a criminal trial the judge must weigh the materiality of defense counsel's testimony versus the defendant's constitutional rights. Rudolph v. State, 829 P.2d 269, 271 (Wyo. 1992); Shelton v. State, 206 Ga. App. 579, 426 S.E.2d 69, 71 (1992); State v. Sullivan, 60 Wn.2d 214, 373 P.2d 474, 477 (1962). The judge must also consider the extent to which defense counsel's credibility as an advocate will be adversely affected. It is unlikely that the jurors would accept the argument of a defense counsel whose testimony appears to lack credibility.