Opinion issued September 5, 2013




                                       In The

                                Court of Appeals
                                      For The

                           First District of Texas
                            ————————————
                               NO. 01-13-00358-CV
                             ———————————
              IN RE THE WILLIARD LAW FIRM, L.P., Relator



            Original Proceeding on Petition for Writ of Mandamus


                          MEMORANDUM OPINION1

      In this mandamus proceeding stemming from a legal malpractice case,

relator, The Williard Law Firm, L.P., petitions for relief from the trial court’s order

disqualifying attorney Steve Williard from representing it in the underlying

dispute. John Sewell, the respondent, alleges that The Williard Law Firm breached

1
 The underlying case is Sewell v. The Willard Law Firm, L.P., No. 1012376 in County
Civil Court at Law No. 1 of Harris County, Texas, the Honorable Debra Ibarra Mayfield
presiding.
its fiduciary duties and a fee agreement while representing Sewell in a separate

dispute. We conditionally grant relief.

                                     Background

      Steve Williard and The Williard Law Firm represented John Sewell in a

dispute that resulted in a settlement. Pursuant to the settlement agreement, Sewell

obtained title to real property, forgiveness of indebtedness, and $19,500. Sewell

executed a promissory note, secured by the real property obtained in the

settlement, in payment for legal services that Williard provided pursuant to their

fee agreement. Williard obtained a lien against the property, and, claiming that

Sewell had defaulted on the note, Williard foreclosed. After the foreclosure, Sewell

sued The Williard Law Firm in this suit, alleging that Williard’s actions with

regard to the promissory note and the foreclosure breached the parties’ contingency

fee agreement and Williard’s fiduciary duties to Sewell. Sewell then sought to

disqualify Williard from representing The Williard Law Firm as counsel, arguing

that Williard is an essential witness. The trial court disqualified Williard.

                                      Discussion

Standard of Review

      “Mandamus is appropriate to correct an erroneous order disqualifying

counsel because there is no adequate remedy by appeal.” In re Sanders, 153

S.W.3d 54, 56 (Tex. 2004).

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Attorney Disqualification

      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

Prod’g 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, a trial court must adhere to an exacting

standard to discourage parties from using disqualification motions as dilatory

tactics. Spears, 797 S.W.2d at 656.

      The fact that an attorney 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.—

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Texarkana 1993, orig. proceeding). Rather, the party requesting disqualification

must demonstrate that the opposing attorney’s dual roles as attorney and witness

will cause the party actual prejudice. Ayres, 790 S.W.2d at 558. 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; see Ayres, 790

S.W.2d at 557.

      In Ayres, the trial court disqualified R. Jack Ayres, Jr. from representing his

law firm, R. Jack Ayres, Jr. P.C., in a dispute in which the opposing party alleged

that Ayres had entered into an oral contract on behalf of his firm. Ayres, 790

S.W.2d at 555. The trial court had found that Ayres, as a party to the oral contract,

was an essential witness, and it thus disqualified him from representing the firm.

Id. at 556. The Texas Supreme Court acknowledged that an attorney acting as both

advocate and witness had the potential to confuse the jury and prejudice the

opposing party. Id. at 557 n.7. Given that the lawyer individually sought to

represent his personal corporation, however, the Supreme Court concluded that

allowing the representation did not prejudice the opposing party so as to require

disqualification without a showing of actual prejudice. Id. 558. The Texas Supreme

Court granted mandamus relief. Id.




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      A similar situation exists with respect to Williard and his firm. Steve

Williard seeks to represent his law firm, The Williard Law Firm, in a dispute about

a contingency fee agreement that Williard had entered into on behalf of his firm.

See id. at 556. Though Williard may be a witness, like in Ayres, this relationship

alone is insufficient to show actual prejudice to Sewell. See id. at 558. Sewell

reiterates that the dual role could potentially confuse the jury. See id. This potential

for confusion, alone, was essentially the case in Ayres, and, without more, does not

compel disqualification. See id.; In re Sanders, 153 S.W.3d at 57. When a former

client sues an attorney for damages arising from the attorney’s representation, the

attorney-witness rule does not bar the attorney from representing himself and his

firm in connection with the dispute, absent a showing of actual prejudice. See

Ayres, 790 S.W.2d at 558.

      Following Ayres, we hold that the trial court erred in granting the motion to

disqualify Williard; we therefore grant mandamus relief. See id.; In re Sanders,

153 S.W.3d at 56.




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                                    Conclusion

      We direct the trial court to vacate its order disqualifying Steve Williard from

representing The Williard Law Firm in the underlying proceedings. Our writ of

mandamus will issue only if the trial court does not comply.




                                             Jane Bland
                                             Justice

Panel consists of Justices Keyes, Higley, and Bland.




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