dissenting.
The majority holds that DR 5-102(A) requires that it be shown that the accused actually learned or that it was obvious to the accused that his partner ought to be called in the trial of Client. The majority then concludes that the evidence in this record does not allow this court to say “that it is highly probable that the accused either learned or that it became obvious to him prior to the middle of the’ trial that Burt ought to be called.” I disagree and, therefore, dissent.
The facts as set out in the majority’s findings establishes that there were at least three times before trial in which the accused was informed or reminded that Burt had some involvement with Client shortly after her arrest. The first was during a telephone conversation between Client and the accused a few days after Client’s arrest when Client mentioned that Burt had picked her up at the jail. Findings of Fact 5. The second was in July, 1980, when Client related to the accused in his office that she had asked the police to call Burt to come get her and he had done so. Findings of Fact 6. The third time was two days before trial when Client again reminded the accused that Burt had picked her up at the jail. Findings of Fact 7.
Thereafter, on the same day, the accused provided to the city attorney’s office a list of names of defense witnesses, including the name of Burt. Findings of Fact 8. On that same day the accused asked Burt’s secretary if he would be available as a witness at the trial. When informed by the secretary that Burt had a case to try in another county the accused replied, if Burt “can spring himself, and agree to come up, send him up.” Findings of Fact 9.
The majority opinion describes how the accused prepares for trial. He does not consider who the witnesses are until “two sometimes three days before the trial.” That is consistent with what happened in this case. Two days *170before trial Client had a conversation with the accused and reminded him that Burt had picked her up, the accused wrote down Burt’s name and spoke to Burt’s secretary indicating Burt should be at the trial if he could.
The majority states that there is evidence in the record that the accused is regarded as an outstanding trial counsel for defense of DUII cases. It is inconceivable that such a lawyer would not comprehend the importance of a witness who had actually observed and interacted with a DUII defendant for a period of time immediately following her arrest and release. It is also unlikely that Client’s reminders to the accused that Burt had picked her up at the jail were based upon anything other than that Burt would be a favorable witness for Client.
The accused may have been confident that he could win Client’s case without Burt but that if Burt was available it would simply be another arrow in his quiver. The evidence establishes that it appeared highly probable to the accused two days before trial that Burt’s testimony would be useful to his Client. Under these circumstances that is sufficient to show that this lawyer knew he ought to call Burt as a witness. Had he acted at that time to withdraw from the case the problem of whether to continue the trial when the ethical question was presented to the court would never have occurred. It is apparent, when presented with a situation such as this, a trial court will ordinarily order the trial to continue because of the hardships to the defendant. Such an order would not have been necessary, however, if the lawyer’s pre-trial non-compliance with DR 5-102(A) had not created the situation which the rule is intended to avoid. Thus, the trial court’s mid-trial order that the lawyer continue does not, as the majority holds, excuse it. I would reject the Disciplinary Review Board’s recommendation to dismiss this case and accept the Trial Board’s recommendation of a public reprimand.
Tanzer, J., joins in this dissent.