¶34 (dissenting) — I disagree with the court’s disposition of this case for a number of reasons. But first of all, I am troubled that the court reverses a trial judge today on a theory the judge was not asked to pass on (deprivation of counsel in violation of the Sixth Amendment), on a citation to case authority he was not invited to consider (State v. Sullivan4), and based on a factual issue he was not invited to pass on (whether the testimony was necessary).
Sweeney, C.J.¶35 Eric Regan argued here in the Court of Appeals that Alan White’s testimony was privileged and that requiring his lawyer, Elizabeth Vasiliades, to cross-examine Mr. White created a conflict of interest. Those are the only arguments raised and argued by the lawyers. And neither contention justifies reversal by well-established law.
Facts
¶36 I “turn now to the instant case, for each case involving this problem must turn upon its own facts.” State v. Stiltner, 61 Wn.2d 102, 105, 377 P.2d 252 (1962). The factual context for the judge’s decision is important here.
¶37 The events that give rise to this appeal all took place before the jury was picked or the trial began. There was, then, ample time for Mr. Regan and his lawyer to adjust to *433the court’s refusal to quash Mr. White’s subpoena. He was not left “in the lurch.” Next, Mr. White was a supervising attorney here. He was not the attorney representing Mr. Regan. Indeed, he did not even file a notice of association with Ms. Vasiliades until the second day of this trial, and then only after the court asked about his role. He filed the notice of association on the day the State called him to testify, the second day of trial. Only then did he associate “as an additional attorney of record for the above named Defendant, in association with Elizabeth Vasiliades, Attorney at Law, the current attorney of record for the Defendant.” Clerk’s Papers at 118.
¶38 Finally, Mr. White’s office had made arrangements with another experienced attorney, Ryan Earl, to step in and supervise because of Mr. White’s previously planned vacation. Why Mr. Earl did not step in is unclear from this record. But those arrangements had been previously made.
Manifest Constitutional Error
¶39 The claim of constitutional error (deprivation of counsel in violation of the Sixth Amendment) is made for the first time here sua sponte by the Court of Appeals. And so the suggestion is that we review the assignment of error in the first instance. But that requires that the error be “manifest.” That means it must have practical and identifiable consequences. State v. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251 (1992). Here, this means that the lawyer’s conflict (1) “ ‘must cause some lapse in representation contrary to the defendant’s interests,’ ” State v. Robinson, 79 Wn. App. 386, 395, 902 P.2d 652 (1995) (quoting Sullivan v. Cuyler, 723 F.2d 1077, 1086 (3d Cir. 1983)), or (2) have “likely” affected particular aspects of counsel’s advocacy on behalf of the defendant, United States v. Miskinis, 966 F.2d 1263, 1268 (9th Cir. 1992). “This showing of some adverse consequence is necessary because an attorney may harbor a conflict but nevertheless provide exemplary representation.” Frazer v. United States, 18 F.3d 778, 787 (9th Cir. 1994) (Beezer, J., concurring).
*434¶40 Requiring counsel to testify is not a per se violation of the defendant’s Sixth Amendment right to counsel; the defendant must show some prejudice. United States v. Bergeson, 425 F.3d 1221, 1225 (9th Cir. 2005). I will go on and explain why I conclude there is no error at all here. But even if there were, any claimed error certainly does not rise to the level of “manifest.”
Discretion Vested with the Trial Judge
¶41 Whether to permit the State to call defense counsel as a witness is a decision vested in the discretion of the trial judge. Stiltner, 61 Wn.2d at 104. And whether a judge has abused his discretion by a specific ruling is best resolved by reviewing the particular facts of each case rather than general inquiry into the propriety of such decisions. Bergeson, 425 F.3d at 1225. The trial judge here had a clear understanding of the facts and Mr. Regan’s objections. Trial counsel did not invite the judge to balance the factors set out in Sullivan. Indeed here on appeal, very capable appellant’s counsel did not assign error to the trial judge’s failure to consider those factors. So I cannot conclude that the judge’s failure to consider them amounted to an abuse of discretion. And I think the decision to require Mr. White to testify was correct, in any event.
Question of Fact — Necessity of the Testimony
¶42 Evidence must be relevant to be admissible. ER 402. Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence . . . more probable or less probable than it would be without the evidence.” ER 401. Whether evidence is relevant is a decision vested in the sound discretion of the trial judge and our standard of review is therefore abuse of discretion. State v. Luvene, 127 Wn.2d 690, 706-07, 903 P.2d 960 (1995).
¶43 Whether Mr. White’s testimony was necessary, or not, is a fact-based, contextually driven determination. It is *435one the trial judge here did not have the chance to make because, again, no one asked him to. The State says the testimony was necessary to prove — beyond a reasonable doubt — that Mr. Regan knew he was supposed to show up for trial and when. The defense says it was not necessary because other evidence was available. I do not know. And we are not in a position to pass on that contextually driven determination and, therefore, should not do so. RAP 2.5(a); State v. Metcalf, 14 Wn. App. 232, 236, 540 P.2d 459 (1975). Again, this decision is vested in the discretion of the trial judge to be reviewed for abuse of discretion, including whether the court’s findings for that decision were supported by the record. Luvene, 127 Wn.2d at 706-07.
¶44 Ultimately, as a court of review, we can only conclude that the evidence had a tendency to make the proposition that the State advances (that Mr. Regan knew the time he was supposed to show up) more probable. For us to decide that this testimony was not necessary usurps the function of the trier of fact, here preliminarily the judge and ultimately the jury. Id.
No Right to Specific Counsel
¶45 Essentially Mr. Regan argues that he had the right to have Mr. White, and Mr. White alone, supervise Ms. Vasiliades’ handling of this case. He is not entitled to that. A defendant in a criminal case is not only not entitled to the “supervising” attorney of his choice, he is not even entitled to the primary lawyer of his choice. State v. Roberts, 142 Wn.2d 471, 515-16, 14 P.3d 713 (2000).
¶46 The purpose of the Sixth Amendment is to guarantee an effective advocate for each criminal defendant. State v. Price, 126 Wn. App. 617, 631-32, 109 P.3d 27 (2005). There is no showing on this record that Mr. Regan received anything less. In any event, the court has discretion in deciding whether dissatisfaction merits substitution of counsel. The defendant does not have the right to any particular lawyer. State v. Lopez, 79 Wn. App. 755, 764, 904 *436P.2d 1179 (1995). There was, then, no denial of Mr. Regan’s Sixth Amendment right to counsel.
State v. Sullivan
¶47 The majority faults the trial judge for failing to consider, failing to weigh, the Sullivan factors. Majority at 430. The judge did not do so for a good reason. No one asked him to. And, indeed, no one assigned error to the trial court’s failure to consider those factors in the briefing to this court. And for good reason, no case says that these factors are either exclusive or required.
¶48 The facts of Sullivan are, moreover, very different than those the trial judge faced here. The defendant there went to a lawyer and apparently related the details of the murder of her husband and the disposal of his body in great, specific, and graphic detail. Sullivan, 60 Wn.2d at 216-17. The inescapable conclusion (and one reached by the Supreme Court) was that Ms. Sullivan had confessed the murder of her husband to the lawyer, related the details, and sought his advice. Id. at 216-22. To then compel him to testify to those details certainly violated the defendant’s right to confidentiality of counsel. That did not happen here.
Testimony Breached No Client Confidence
¶49 Simply telling a client to show up for court on time does not communicate privileged information.5 The attor*437ney fulfills his duty as an officer of the court and relays iriformation that is readily available from public record. The information provided here was not privileged. United States v. Bauer, 132 F.3d 504, 508 (9th Cir. 1997); United States v. Clemons, 676 F.2d 124, 125 (5th Cir. 1982). Mr. White was not required to disclose confidential information. He essentially testified that he told Mr. Regan to show up for court on time, in fact to show up early. That is not a privileged communication.
¶50 Other evidence showed the court’s orders directing the date and time of trial. The best witness to establish that Mr. Regan was listening and understood the orders — to establish the element of knowledge — was his lawyer, Ms. Vasiliades. The State opted instead to call a supervising attorney — a supervising attorney who at the time the State served the subpoena was not even the counsel of record for Mr. Regan. Again, Mr. Regan was not denied his right to counsel.
Conclusion
¶51 I would conclude on this record that the judge did not abuse his discretion by requiring a supervising attorney to testify. I would conclude that Mr. Regan was not denied his Sixth Amendment right to counsel. And even were I to assume constitutional error, any error is not manifest.
¶52 Here, there is no difficulty assessing any prejudicial effect, even assuming error, by requiring Mr. White to testify. His counsel remained Ms. Vasiliades. In Holloway v. Arkansas,6 cited by Mr. Regan, the conflict was obvious and incurable. There was no way for the court to evaluate the prejudice to the defendants, since representation there, including advice and examination at trial, was compromised by counsel’s obvious conflict of interest. Holloway, 435 U.S. at 490-91. But that is not the case here. Mr. Regan *438had a lawyer. He was not deprived of full representation, including full advice, counsel, and cross-examination.
¶53 Mr. White was not the attorney assigned to represent Mr. Regan. He was a supervising attorney. And moreover, there was another supervising counsel already available since Mr. White had a vacation scheduled during the course of the trial. The trial judge considered all of this.
¶54 I would affirm the conviction. And therefore I respectfully dissent.
Review denied at 165 Wn.2d 1012 (2008).
State v. Sullivan, 60 Wn.2d 214, 373 P.2d 474 (1962).
United, States v. Bauer, 132 F.3d 504, 508 (9th Cir. 1997); Antoine v. Atlas Turner, Inc., 66 F.3d 105, 110 (6th Cir. 1995); United States v. Clemons, 676 F.2d 124, 125 (5th Cir. 1982); In re Grand Jury Proceedings, 568 F.2d 555, 557 (8th Cir. 1977); United States v. Uptain, 552 F.2d 1108, 1109 (5th Cir. 1977); Moudy v. Superior Court, 964 P.2d 469, 472 (Alaska Ct. App. 1998); State v. Davis, 98 Conn. App. 608, 634-35, 911 A.2d 753 (2006), certification granted in part, 281 Conn. 915 (2007); Watkins v. State, 516 So. 2d 1043, 1046 (Fla. Dist. Ct. App. 1987); People v. Brown, 275 Ill. App. 3d 1105, 1110, 657 N.E.2d 642, 212 Ill. Dec. 441 (1995); Korff v. State, 567 N.E.2d 1146, 1148 (Ind. 1991); In re Adoption of A.S.S., 21 Kan. App. 2d 714, 719-21, 907 P.2d 913 (1995); State v. Hawes, 251 Neb. 305, 308-09, 556 N.W.2d 634 (1996); State v. Ogle, 297 Or. 84, 91, 682 P.2d 267 (1984); Solomon *437v. State, 999 S.W.2d 35, 39 (Tex. App. 1999); Austin v. State, 934 S.W.2d 672, 674-75 (Tex. Crim. App. 1996).
Holloway v. Arkansas, 435 U.S. 475, 98 S. Ct. 1173, 55 L. Ed. 2d 426 (1978).