dissenting:
I respectfully dissent.
The majority holds that a trial court is under no obligation to disqualify plaintiffs counsel from representation when the defense calls the counsel as a witness. The majority concludes that the plaintiffs counsel should have withdrawn from representation under the applicable standards of professional responsibility. However, the majority states that “[pjlaintiff s counsel were responsible for the position in which they placed themselves and cannot now avoid the consequences of their actions.” Maj. op. at 63. Accordingly, the majority concludes that the trial court was under no obligation to disqualify plaintiffs counsel.
I agree that the conduct of the plaintiffs attorneys violated the Code of Professional Responsibility. However, I disagree with the majority’s conclusion that the trial court was not obligated to disqualify the plaintiffs attorneys when such a conflict became apparent. Under our caselaw, the trial court was required to treat each subpoena as a motion to disqualify. It erred when it failed to do so and failed to disqualify the plaintiffs counsel.
The majority cites Williams v. District Court, 700 P.2d 549 (Colo.1985) with approval in the present case. However, the majority ignores our express holding in Williams which is dispositive on the issue before us:
Although the prosecution may not have taken the step of actually filing a formal motion to disqualify a defense attorney subpoenaed as a prosecution witness for trial, the act of subpoenaing defense counsel is itself, in our opinion, the functional equivalent of a motion to disqualify. “It is obvious that a lawyer cannot act as an advocate on behalf of his client, and yet give testimony adverse to the interests of that client in the same proceeding.”
Id. at 555 (quoting Riley v. District Court, 181 Colo. 90, 95, 507 P.2d 464, 466 (1973)).1 We specifically held that when opposing counsel is subpoenaed, a trial court should consider that act as “the functional equivalent of a motion to disqualify.” Accordingly, the trial court should have considered the subpoena as a motion to disqualify and determined whether any conflict requiring disqualification was involved.2
*65The trial court correctly considered the following Williams factors in deciding whether an attorney may subpoena opposing counsel to testify adversely to his client: “(1) that [opposing counsel’s] testimony will be actually adverse to [his or her client]; (2) that the evidence sought to be elicited from the lawyer will likely be admissible at trial under the controlling rules of evidence; and (3) that there is a compelling need for such evidence, which need cannot be satisfied from some other source.” Williams, 700 P.2d at 555-56 (footnotes omitted). The trial court ruled that defense counsel had met the Williams standard and that plaintiffs counsel would be required to testify.
The majority apparently agrees with the trial court’s and the court of appeals’ conclusion on this issue, but it finds that the trial court’s inquiry properly ended after it decided the testimony issue. Under my analysis, if the testimony is found to be necessary and the attorneys are to be subpoenaed, the court must proceed to consider whether to disqualify the plaintiffs attorneys from further representation, regardless of an express motion to disqualify. In most eases, a finding that the Williams factors are met will be disposi-tive of the disqualification issue. As we said in Williams, “[a] lawyer will rarely, if ever, be able to effectively serve as an advocate and give testimony adverse to his client in the same proceeding.” 700 P.2d at 554.
I disagree with the majority’s characterization of the Williams test in footnote 6. Maj. op. at 62. It is correct only in the most technical sense to say, as the majority does, that Williams “did not set forth the criteria for disqualification.” Williams did not use that label. However, by equating a subpoena compelling the testimony of opposing counsel with a motion to disqualify, Williams must have intended that its three-factor test would apply to the implied motion to disqualify. I reach this conclusion because Williams cited three cases as authority for its test. Two are cases involving attempts to compel opposing counsel to testify and the third involves a motion to disqualify opposing counsel. Williams, 700 P.2d at 556. There simply is no basis in Williams to limit the test to the testimony issue.
As stated by the Arizona Supreme Court on a similar issue:
We would like to believe an attorney who recognizes that he ought to be called as a witness would withdraw out of respect for the profession of which he is a member and the court of which he is an officer rather than out of the fear of discipline. In any event, when the court is faced with an attorney who refuses to withdraw and insists on taking the stand, the court may in its discretion disallow the testimony, disqualify the attorney, or impose any other procedural safeguards necessary to preserve the integrity of the fact finding process. If the court finds the unethical considerations raised by such testimony constitute prejudice great enough to outweigh the probative value of otherwise relevant evidence, the testimony may be disallowed. Where the evidence is material, necessary for the just determination of the issues, and unavailable from other sources, the court may order an attorney’s disqualification.
Cottonwood Estates v. Paradise Builders, 128 Ariz. 99, 624 P.2d 296, 302 (1981) (citations omitted); see also Comden v. Superior Court, 20 Cal.3d 906, 145 Cal.Rptr. 9, 576 P.2d 971 (1978).
The majority concludes that “the defendant would be unfairly burdened if she were required to defend against the plaintiffs’ claims in a new trial.” Maj. op. at 63. I find this reasoning unpersuasive. First, virtually any issue raised on appeal carries the risk of retrial. Furthermore, there is no great hardship to the defendant because this case has not yet been tried on the merits. The only issue which has been tried was the statute of limitations issue. Upon concluding that the statute of limitations had run, the trial court dismissed the case without ever evaluating the merits.
*66Second, the defendant initiated this dispute by subpoenaing the plaintiffs attorneys. They could, and should, have expressly sought to disqualify the plaintiffs attorneys, especially in light of the trial court’s confusion over the issue. I find it hard to believe that when subpoenaing plaintiffs counsel, the defense counsel did not appreciate the possible problems inherent in their actions.
Finally, it is wrong to put the burden on the innocent client to insist that his attorneys withdraw because they have been subpoenaed to testify. We cannot expect lay persons to have the legal sophistication to identify and resolve a problem which apparently escaped the understanding of two sets of lawyers and the trial judge. The burden should be placed squarely on the trial court. If the attorneys do not adhere to the Code of Professional Responsibility, the court must act. Here, it did not.
Accordingly, I believe the trial court erred in not considering the motion to subpoena to be the functional equivalent of a motion to disqualify. I would hold that since the trial court held that the subpoenas should issue and knew that the scope of the testimony was potentially dispositive of the case, the trial court should have disqualified the plaintiffs attorneys. I would affirm the judgment of the court of appeals.
LOHR, J., joins in this dissent.
. I agree with the majority that although Williams was a criminal case, the Williams analysis is applicable in both civil and criminal contexts. Maj. op. at 62 n. 5.
. In a pretrial conference on March 31, 1992, the trial court was specifically asked by plaintiff’s counsel if the court denied the motion to disqualify plaintiff's counsel. The court responded that it did not know if that was before the court and that its order said nothing about a motion to disqualify. Although the plaintiff's counsel made some assertions that the motion to subpoena was actually a motion to disqualify, some confusion *65exists as to whether the court actually believed that the motion to subpoena was also a motion to disqualify. Under Williams, the motion to subpoena was the functional equivalent of a motion to disqualify. Accordingly, if a subpoena is necessary and the motion is granted, the motion to disqualify must also be ruled upon and, in instances such as this, it must be granted.