Motion Denied as Moot; Petition for Writ of Mandamus Granted and
Memorandum Opinion filed April 19, 2013.




                                   In The

                   Fourteenth Court of Appeals

                              NO. 14-13-00311-CV



               IN RE MARGARET DIANE STONE, Relator


                        ORIGINAL PROCEEDING
                          WRIT OF MANDAMUS
                  On Appeal from the 387th District Court
                          Fort Bend County, Texas
                   Trial Court Cause No. 11-DCV-190152

                        MEMORANDUM OPINION

      On April 10, 2013, relator filed a petition for writ of mandamus in this
Court. See Tex. Gov’t Code Ann. §22.221 (West 2004); see also Tex. R. App. P.
52. In the petition, relator asks this Court to compel the Honorable Brenda
Mullinix, presiding judge of the 387th District Court of Fort Bend County, to
vacate her order signed April 2, 2013, disqualifying relator’s attorney in the
proceeding below. Relator also filed an emergency motion for stay. A response
was requested but none was filed.

      In the divorce proceeding below, relator’s husband moved to disqualify her
attorney. Following a hearing, the trial court granted the motion. In her petition,
relator claims the trial court abused her discretion.

      We first note that mandamus is appropriate to correct an erroneous order
disqualifying counsel because there is no adequate remedy by appeal. See In re
Epic Holdings, Inc., 985 S.W.2d 41, 52 (Tex.1998) (orig. proceeding).                  In
determining whether the trial court abused its discretion with respect to resolution
of factual matters, we may not substitute our judgment for that of the trial court
and may not disturb the trial court's decision unless it is shown to be arbitrary and
unreasonable. Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex.1992). A trial court
also abuses its discretion if it fails to analyze or apply the law correctly. Id. at 840.

        “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.” In
re Sanders, 153 S.W.3d 54, 56 (Tex. 2004) (orig. proceeding). Disqualification is
a severe remedy that can cause immediate harm by depriving a party of its chosen
counsel and disrupting court proceedings. See Spears v. Fourth Court of
Appeals, 797 S.W.2d 654, 656 (Tex.1990) (orig. proceeding); and In re Nitla S.A.
de C.V., 92 S.W.3d 419, 423 (Tex.2002) (orig. proceeding). Disqualification is
appropriate only if the lawyer's testimony is “necessary to establish an essential
fact.” Tex. Disciplinary R. Prof'l Conduct 3.08(a).        Thus the fact that a lawyer
serves as both an advocate and a witness does not in itself compel disqualification.
                                            2
Ayres v. Canales, 790 S.W.2d 554, 557-58 (Tex. 1990) (orig. proceeding). The
movant 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. Such
prejudice can occur if a fact finder is confused as to whether a statement by an
advocate-witness should be taken as proof or an analysis of the proof and an
opposing party is thereby handicapped in challenging the credibility of the
testifying attorney. See Anderson Producing Inc. v. Koch Oil Co., 929 S.W.2d 416,
422 (Tex.1996). Absent such a showing, the rule could be improperly employed
“as a tactical weapon to deprive the opposing party of the right to be represented
by the lawyer of his or her choice.” 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”).

       The motion to disqualify claimed relator’s attorney may be a fact witness
and that as such her dual role could cause actual prejudice based on three
assertions:     (1) relator’s attorney took relator to open a bank account and
documented the event by taking photographs;1 (2) relator’s attorney hired relator to
work in her law office in spite of pleading relator is unable to work; and (3)
relator’s attorney assisted relator, either financially or otherwise, with her
psychological or mental health care.

       The hearing record reflects there was no evidence that relator’s attorney is
the only person in possession of facts regarding these allegations. See In re
Guidry, 316 S.W.3d 729, 740 (Tex. App. -- Houston [14th Dist.] 2010, orig.

       1
         We note the attempt to also disqualify relator’s attorney on the basis she took photographs
smacks of gamesmanship.
                                                 3
proceeding) (lawyer’s testimony was necessary to establish an essential fact
because other sources of proof would not reveal what the lawyer knew and when
he knew it, crucial elements of the defense). Thus it was not shown the testimony
of relator’s attorney is necessary to establish an essential fact. Moreover, the
record fails to demonstrate that the attorney’s dual role, if she were a fact witness,
would cause actual prejudice. See Ayres, 790 S.W.2d at 558 n. 2. In light of the
fact the underlying proceeding is a bench trial, the risk of confusion cannot simply
be presumed.

      Because there was no evidence the attorney’s testimony is necessary to
establish an essential fact, and no evidence that actual prejudice would result if the
attorney does testify as a fact witness, we find the trial court’s abused her
discretion in granting the motion to disqualify. Accordingly, we conditionally
grant the petition for a writ of mandamus and direct the trial court to vacate its
April 2, 2013 order. The writ will issue only if the trial court fails to act in
accordance with this opinion.

      Relator’s emergency motion for stay is denied as moot.




                                 /s/   Sharon McCally
                                       Justice



Panel consists of Justices Christopher, Jamison and McCally.



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