dissenting.
The rules governing the State Bar of Texas have the same force and legal effect upon the matters to which they relate as the Texas Rules of Civil Procedure have upon the matters to which they relate. Warrilow v. Norrell, 791 S.W.2d 515 (Tex.App.-Corpus Christi 1989, writ denied). The disciplinary rules, unlike ethical considerations, are mandatory in character because they establish the minimum level of conduct below which no lawyer can fall. United Pacific Ins. Co. v. Zardenetta, 661 S.W.2d 244, 249 (Tex.App.-San Antonio 1983, no writ). Ride 3.08 of the State Bar Rules disqualifies an attorney who is or may be a witness on behalf of his client to withdraw unless he falls within one of the five exceptions.
*400It is undisputed that Bird Old, III, prepared the will which is being contested and is alleged to be a person asserting undue influence upon the testator. The mere announcement by an adversary of his intention to call opposing counsel as a witness is insufficient to orchestrate counsel’s disqualification. United Pacific Ins. Co. v. Zardenetta, 661 S.W.2d at 248. In the present case, however, it is clear that Old’s testimony would bear upon two crucial issues in the will contest case: (1) the testator’s mental capacity to make the will and (2) whether there was undue influence asserted on the testator. His personal knowledge of facts concerning these issues makes it likely that he may be called as a witness.3 Old has not shown that he comes under any one of the five exceptions to Rule 8.08.
The majority opinion concludes that the party seeking disqualification has not demonstrated an actual prejudice to itself from Old’s service in dual roles, relying on Ayres v. Canales, 790 S.W.2d 554 (Tex.1990). In the Ayres case, the Supreme Court found that, given the distinct facts of that case, there was not a compelling basis for disqualification. The Ayres case involved a lawsuit seeking a declaratory judgment concerning a referral fee agreement. The court found that Subsection (a)(4) of 3.08 of the State Bar Rules applied to the facts of that case because Ayres did not accept employment in the underlying lawsuit and because he was a party seeking to appear pro se. The Supreme Court went on to say that, in order to prevent misuse of the rule, the trial court should require the party seeking disqualification to demonstrate actual prejudice to itself resulting from the opposing lawyer’s service in dual roles.
The most common justification given for the advocate-witness rule is that when an attorney representing a party also serves as a witness who testifies as to a controversial or contested matter, there exists a potential danger that the jury will confuse the roles of the counsel. A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate-witness should be taken as proof or as analysis of the proof. Ayres v. Canales, 790 S.W.2d at 557 n. 1. It is difficult to imagine how this type of prejudice could be proved except by inference when counsel takes an active part in the trial as well as testifying as a witness on matters which go to the heart of the controversy. While it is true that, at this point, no such testimony has been offered, under the circumstances it must be anticipated that the testimony by counsel will be crucial. It would be better for counsel Old to be prohibited from participating in the trial as trial counsel at this point in the proceedings than to determine after the trial that active participation in both roles was prejudicial to the other party.
I respectfully dissent.
. The majority opinion found that because Old has suggested that he did not intend to call himself as a witness, then Rule 3.08 is not applicable to him. This rule, however, does not apply only to an attorney calling himself as a witness. It applies to an adverse witness or a hostile witness called by the opposing party also, and it applies to both a lawyer-witness testifying favorably to his client (Rule 3.08(a)) and to a lawyer-witness testifying adversely to his client (Ride 3.08(b)).