law-disqualification of counsel | disqualification of judge | recusal |
ATTORNEY DISQUALIFICATION - ATTORNEY AS FACT WITNESS - CONFLICT OF
INTEREST
When a lawyer is or may be a witness necessary to establish an essential fact, Texas Disciplinary Rule
of Professional Conduct 3.08 prohibits the lawyer from acting as both an advocate and a witness in an
adjudicatory proceeding. See TEX. DISCIPLINARY R. PROF’L CONDUCT 3.08(a). Rule 3.08 was
“promulgated as a disciplinary standard rather than one of procedural disqualification, but [Texas courts]
have recognized that the rule provides guidelines relevant to a disqualification determination.” See
Sanders, 153 S.W.3d at 56 (citing Anderson Producing Inc. v. Koch Oil Co., 929 S.W.2d 416, 421 (Tex.
1996)).
“Disqualification is a severe remedy.” Spears v. Fourth Court of Appeals, 797 S.W.2d 654, 656 (Tex. 1990). It
can result in immediate and palpable harm, disrupt trial court proceedings, and deprive a party of the right to
have counsel of choice. In re Nitla S.A. de C.V., 92 S.W.3d 419, 422 (Tex. 2002). Consequently, in considering a
motion to disqualify, the district court must strictly adhere to an exacting standard to discourage a party from
using the motion as a dilatory tactic. Spears, 797 S.W.2d at 656; see also TEX. DISCIPLINARY R. PROF’L
CONDUCT 3.08 cmt. 10 (stating that a lawyer “should not seek to disqualify an opposing lawyer by unnecessarily
calling that lawyer as a witness”). “Mere allegations of unethical conduct or evidence showing a remote possibility
of a violation of the disciplinary rules will not suffice” to merit disqualification. Spears, 797 S.W.2d at 656.
It is only appropriate to disqualify an attorney due to her status as a potential witness if the attorney’s testimony is
“necessary to establish an essential fact.” TEX. DISCIPLINARY R. PROF’L CONDUCT 3.08(a); Sanders, 153 S.W.
3d at 57. The fact that a lawyer serves, or may serve, as both an advocate and a witness does not in itself
compel disqualification. See Ayres v. Canales, 790 S.W.2d 554, 557-58 (Tex. 1990); In re Chu, 134 S.W.3d 459,
464 (Tex. App.—Waco 2004, orig. proceeding); May v. Crofts, 868 S.W.2d 397, 399 (Tex. App.—Texarkana
1993, orig. proceeding). Rather, the party requesting disqualification must demonstrate that the opposing lawyer’
s dual roles as attorney and witness will cause the party actual prejudice. Ayres, 790 S.W.2d at 558; see also In
re B.L.H., No. 01-06-00817-CV, 2008 WL 864072, at *3 (Tex. App.—Houston [1st Dist.] Mar. 27, 2008, orig.
proceeding).
DISQUALIFICATION OF COUNSEL CASES FROM HOUSTON COURTS OF APPEALS
In re Jain (Tex.App.- Houston [1st Dist.] Feb. 4, 2010)(per curiam)
(mandamus petition re order of disqualification of counsel moot)
Relator filed a petition for writ of mandamus complaining of Judge Sandill's (1) order disqualifying Jain's counsel.
Jain has informed this Court that he has secured other counsel rending his petition for writ of mandamus moot.
We dismiss the petition for writ of mandamus as moot.
DISMISS PETITION FOR WRIT OF MANDAMUS: Per Curiam
Before Chief Justice Radack, Justices Alcala and Higley
01-09-00944-CV In Re Umesh Jain
Appeal from 127th District Court of Harris County
Trial Court Judge: Hon. Ravi K. Sandill
In re Vossdale Townhouse Ass'n (Tex.App.- Houston [14th Dist.] Dec. 29, 2009)(Seymore)
(sanctions for discovery abuse, attorney disqualification not authorized as sanction, fundamental right to their
counsel of choice)(mandamus granted)
In the petition, relators ask this Court to compel the Honorable Mike Engelhart, presiding judge of the 151st District Court of Harris
County, to set aside his February 4, 2009 order removing relators’ attorney from representation of them in the underlying case. We
conditionally grant the petition, in part, and deny it, in part. An order directing that counsel may no longer represent his clients in the
subject litigation is not among those sanctions enumerated in Rule 215.2(b).
GRANTED IN PART AND DENIED IN PART: Opinion by Justice Seymore
Before Chief Justice Hedges, Justices Seymore and Sullivan
14-09-00723-CV In Re Vossdale Townhouse Association, Inc.; John B. Baird, as President of the Vossdale
Townhouse Association, Inc., and Individually; and Pauletta Gwen Holley Gilbert, as Secretary of the Vossdale
Townhouse Association, Inc., and Individually
Appeal from 151st District Court of Harris County
Trial Court Judge: Mike Engelhart
Praise Tabernacle Outreach v. The Restoration Financial Group, (Tex.App.- Houston [14th Dist.] July 29, 2008)
(Guzman) (Church breach of contract, disqualification of counsel)
AFFIRMED: Opinion by Justice Guzman
Before Justices Brock Yates, Guzman and Brown
14-06-01055-CV Praise Tabernacle Outreach & Family Worship Center and Reflections of Christ's Kingdom
v. The Restoration Financial Group, Inc. and Felecia W. Ward
Appeal from County Court at Law No 2 & Probate Court of Brazoria County
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