In re Sanders ( 2004 )

MEMORANDUM OPINION

Opinion by

Justice O’NEILL.

In her petition for writ of mandamus, relator contends the trial court abused its discretion in denying her motion to disqualify opposing counsel because opposing counsel is a material fact witness. We agree and conditionally grant the writ.

Joyce Sanders and Bill Sanders are parties to a pending divorce and child custody suit. Bill Sanders works evenings and some weekends as a carpenter for his counsel in the divorce proceeding, Mary McKnight, to pay his legal fees. Joyce moved to disqualify McKnight from representing Bill alleging McKnight is a material fact witness for Bill in the custody case because she is his employer. After a hearing, the associate judge recommended the motion be denied. The parties agreed to allow the trial court to decide the matter de novo based on the record of the hearing before the associate judge. The trial court denied the motion to disqualify. Joyce then filed this original proceeding asserting McKnight is a fact witness on the contested issues of child custody and support. Bill responds that Joyce’s motion is untimely, is a tactical weapon, and counsel’s testimony does not go to an essential fact in the case.

In order to obtain a writ of mandamus, a relator must establish (1) that she does not have an adequate remedy at law and (2) the trial court clearly abused its discretion in denying the motion to disqualify. Walker v. Packer, 827 S.W.2d 833, 839-44 (Tex.1992) (orig.proceeding). There is no adequate remedy at law for an order on a motion to disqualify counsel and relief by mandamus is an available remedy. In re Epic Holdings, Inc., 985 S.W.2d 41, 54 (Tex.1998) (orig.proceeding). We review the record presented to determine if the trial court clearly abused its discretion in denying the motion to disqualify.

We look to disciplinary rule of professional conduct 3.08 for guidance in determining disqualification of counsel. Anderson Producing, Inc. v. Koch Oil Co., 929 S.W.2d 416, 421-22 (Tex.1996) (citing Ayres v. Canales, 790 S.W.2d 554, 556 n. 2 (Tex.1990) and Spears v. Fourth Court of Appeals, 797 S.W.2d 654, 656 (Tex.1990)). Rule 3.08 provides that

(a) A lawyer shall not accept or continue employment as an advocate before a tribunal in a contemplated or pending adjudicatory proceeding if the lawyer knows or believes that the lawyer is or may be a witness necessary to establish an essential fact on behalf of the lawyer’s client, unless:

(1) the testimony relates to an uncontested issue;

(2) the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony;

(3) the testimony relates to the nature and value of legal services rendered in the case;

(4) the lawyer is a party to the action and is appearing pro se;

(5) the lawyer has promptly notified opposing counsel that the lawyer expects to testify in the matter and disqualification of the lawyer would work a substantial hardship on the client.

Tex. DisciplinaRY R. Prof’l Conduct 3.08 reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A (Vernon 1998) (Tex. State Bar R art. X § 9).

After reviewing the record, we conclude the trial court abused its discretion in denying the motion to disqualify McKnight from acting as trial counsel for Bill. McKnight’s testimony as an employer relating to Bill’s abilities to care for the minor child or pay child support, and her possibly adverse testimony about when the employment began leads us to conclude a fact finder may be confused or mislead by McKnight’s dual roles. McKnight may continue to act as counsel for Bill on pretrial matters and, if the requirements of 3.08(c) are met, other attorneys with McKnight’s firm may act as advocate for Bill in any adjudicatory proceeding in this case. Anderson, 929 S.W.2d at 422-23; In re Bahn, 13 S.W.3d 865, 873; Tex. Disciplinary R. Prof’l Conduct 3.08(c).

Accordingly, the Court conditionally GRANTS the writ of mandamus. The trial court is ORDERED to vacate its order denying relator’s motion to disqualify counsel and to enter an order disqualifying Mary McKnight from acting as an advocate for Bill Sanders before any tribunal in the case styled In the matter of the marriage of Joyce Elizabeth Sanders and Bill Martin Sanders and in the interest of Grade Claire Sanders, a minor child, number 02-15189, within thirty days of the date of this opinion and judgment. Should the trial court fail to do so, the writ will issue. The trial court is ORDERED to file a certified copy of its order in compliance with this opinion and judgment with this Court within thirty days of the date of this opinion and judgment.

WHITTINGTON, J., dissenting.