Opinion issued August 9, 2012.




                                   In The

                            Court of Appeals
                                  For The

                        First District of Texas
                        ————————————
                            NO. 01-12-00497-CV
                         ———————————
               IN RE CHARLES LEYENDECKER, Relator



           Original Proceeding on Petition for Writ of Mandamus



                        MEMORANDUM OPINION

     In this original proceeding, relator Charles Leyendecker seeks mandamus

review of the trial court’s order disqualifying attorney Keith Gross from

representing Charles in the underlying suit by Charles’s former mother-in-law
seeking custody, or, alternatively, rights of possession and access to Charles’s

children.1 We conditionally grant the writ of mandamus.

                                    Background

      Charles is the father of L.L. Real party in interest, Diana Hart, is L.L.’s

maternal grandmother. L.L.’s mother passed away in 2006, and Charles has since

remarried. Diana brought the underlying suit to obtain custody of or, alternatively,

establish rights of possession and access to L.L. and L.L.’s younger sibling.2

      At the time of the hearing on temporary orders in February 2012, Charles

was represented by attorney John Powell but not by Gross. Powell called Gross to

testify at that hearing. Gross’s testimony established the following three points: (1)

Gross had a conversation with L.L. in which L.L. expressed his desire to live with

Diana because he was unhappy living with Charles and Charles’s new wife; (2)

Gross believes that Charles provides a good home for L.L. and that nothing about

Charles’s parenting presents a risk to L.L.’s emotional or physical well-being; and

(3) while Gross had not recently seen Diana visiting L.L. at Charles’s home, Gross

believes that Diana sincerely cares for and wants the best for L.L.


1
      The underlying proceeding is In the interest of C.L.L. and L.L., No. 12FD0398, in
      the 306th District Court, Galveston County, Texas, the Honorable Janis
      Yarbrough, presiding.
2
      While the underlying case relates to both of Charles’s children, the arguments and
      evidence regarding the motion to disqualify and this original proceeding relate
      only to the older of the two children, L.L.
                                          2
      After the hearing, the trial court ordered that L.L. live with Diana. Several

days later, Gross appeared in the case as lead counsel for Charles and filed a notice

of appeal of the trial court’s ruling. Shortly after Gross’s appearance as Charles’s

counsel, Diana’s counsel told Gross she believed Gross was prohibited from

representing Charles because he had testified at the hearing on temporary

orders. But Diana did not move to disqualify Gross at that time. Instead, Diana’s

counsel continued to communicate with Gross about the case (and even attended a

mediation session) for approximately eight more weeks without further discussion

of the issue, until Gross requested L.L.’s deposition and sought other discovery

from Diana. At that time, Diana filed an “Emergency Motion to Disqualify.” In

her motion, Diana asserted that Gross “testified as a material witness” and

therefore “is prohibited by the Texas Disciplinary Rules of Professional Conduct

from representing [Charles] in this case.” Specifically, Diana asserted that Gross

should be disqualified because he “essentially testified that he was [Charles’s] best

friend, knew the parties for years, and used to hang out with them on numerous

occasions.”    No exhibits, affidavits, or other evidence accompanied the

motion. The trial court held an evidentiary hearing on the motion at which Gross

and Diana testified and then ruled that Gross be disqualified from representing

Charles in the underlying action.




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                                    Discusssion

      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). 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 RULES PROF’L CONDUCT R. 3.08(a), reprinted

in TEX. GOV’T CODE ANN., tit. 2, subtit. G, app. A (West 2005) (Tex. State Bar R.

art. X, § 9). Although Rule 3.08 was “promulgated as a disciplinary standard

rather than one of procedural disqualification,” 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)).

      The Texas Supreme Court has emphasized that “[d]isqualification is a severe

remedy.” Id. at 57 (quoting Spears v. Fourth Ct. of App., 797 S.W.2d 654, 656

(Tex. 1990)). It can “cause immediate harm by depriving a party of its chosen

counsel and disrupting court proceedings.” Id. 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. “‘Mere allegations of unethical conduct or evidence showing a

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remote possibility of a violation of the disciplinary rules will not suffice’ to merit

disqualification.” Sanders, 153 S.W.3d at 57 (quoting Spears, 797 S.W.2d at 656).

      It is only appropriate to disqualify an attorney due to his status as a potential

witness if the attorney’s testimony is “necessary to establish an essential fact.” Id.

(quoting TEX. DISCIPLINARY RULES PROF’L CONDUCT R. 3.08(a)). The fact that a

lawyer serves, or may serve, as both a representative and as a witness does not in

itself compel disqualification. Id.; see also In re Garza, No. 04-11-00835-CV,

2012 WL 556311, at *2 (Tex. App.—San Antonio Feb. 15, 2012, orig. proceeding)

(stating disqualification under Rule 3.08 is not appropriate unless party seeking

disqualification establishes “a genuine need for the attorney’s testimony and that

the testimony goes to an essential fact”).           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 v. Canales, 790 S.W.2d

554, 557–58 (Tex. 1990).

      Rule 3.08 of the Texas Disciplinary Rules of Professional Conduct states:

      (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;




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             (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; or

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

TEX. DISCIPLINARY RULES PROF’L CONDUCT R. 3.08(a). Gross does not contend

that any of the exceptions listed in rule 3.08 apply in this case. Thus, the issue is

whether Gross’s testimony is “necessary to establish an essential fact on behalf of

[Gross’s] client.” Because Diana is the party seeking disqualification, she has the

burden to make that showing. See Sanders, 153 S.W.3d at 57 (citing Spears, 797

S.W.2d at 656).

      To prevail in the underlying case in which she seeks custody or rights of

possession and access to L.L., Diana bore the burden to prove that Charles’s

“denial of possession of or access to [L.L.] would significantly impair [L.L.’s]

physical health or emotional well-being.” TEX. FAM. CODE ANN. § 153.433(a)(2)

(West Supp. 2011). But nowhere in her motion to disqualify does Diana identify

any essential fact that is both necessary to her case and may be established only

through Gross’s testimony. Nor does the evidence adduced at the hearing on the
                                          6
motion to disqualify reveal that Gross’s testimony is necessary to establish any

essential fact. Diana testified as follows:

      [Gross] What fact is necessary for me to establish in this case that on
      your behalf or [Charles’s] behalf, what facts do I have, that you
      believe that I have, that are necessary to establish either your case or
      [Charles’s] case?

      [Diana] You have the facts that you’ve talked to [L.L] when he ran
      away, and right before this all came up, and he spoke to you about
      wanting to come to my place.

      [Gross] You’ve identified a conversation. What facts do I have that I
      could testify that is necessary to establish the case? You’ve
      mentioned that I talked to him on the phone. But what facts do you
      believe or do you have personal knowledge of is necessary for me to
      testify to that would disqualify me as an attorney?

      [Diana] I can’t tell an exact specific fact. . . .

             ....

             There were some things in your testimony that were -- I’m not
      exactly sure how to say it, but you were at [Charles’s] new house like
      twice a month and never saw me. At the same time, the only time I
      went there was to pick the boys up and left. I wasn’t there to
      socialize.

      [Gross] So is that fact necessary to establish your case or their case?

      [Diana] Yeah. It was in your testimony when you were the witness.

      [Gross] Have you completely answered my question? Are there any
      other facts you would like to introduce to this court that you believe is
      necessary for you to call me as a witness or for Mr. Leyendecker to
      call me as a witness?

      [Diana] Right at this moment I can’t think of any, but I’m fairly
      certain there will be some questions down the line.
                                              7
Likewise, in his affidavit, which the trial court admitted as an exhibit, Gross

averred that he has no knowledge necessary to establish an essential fact in the

case and, indeed, that he lacks personal knowledge of facts regarding L.L.’s and

the family’s present circumstances. He also stated he would not call himself as a

witness and added that L.L., Charles, Charles’s wife, Diana, and other witnesses

will establish the facts necessary to prove or negate the existence of any essential

fact.

        Despite this record, Diana’s response to the mandamus petition urges us to

conclude that Gross’s disqualification was proper because (1) Gross had a

conversation with L.L. in which L.L. said he wanted to live with Diana, (2) Gross

testified that he had not recently seen Diana at Charles’s house, and (3) Gross

testified that there is nothing wrong with the environment and manner in which

Charles is raising L.L. Diana argues that this testimony relates directly to issues on

which she bears the burden of proof. While these facts may bear some relevance

to disputed issues in the case, Diana has made no showing that any of Gross’s

testimony is necessary to establish any essential fact in the underlying case. In

particular, Diana made no showing below and makes no argument in this original

proceeding that any testimony Gross could provide is not available from another

source. See Sanders, 153 S.W.3d at 57 (holding trial court did not abuse discretion

in denying motion to disqualify because movant made no showing testimony was
                                          8
necessary because it was not available from another source). On the contrary, the

record shows various other potential sources of the information about which Gross

testified at the temporary orders hearing. For example, L.L. can testify about the

conversation he had with Gross and the other facts Diana claims are essential to the

case. The record shows L.L. already has testified in great detail about his family’s

circumstances and the challenges he faces at home and in school. And Charles, his

new wife, and Diana can also testify about L.L.’s health and well-being and

whether denying Diana access to L.L. would impair them. Finally, L.L.’s medical

and psychological records, which apparently have been the subject of discovery,

also may contain evidence necessary to establish an essential fact. Because Diana

made no showing in the trial court that Gross’s testimony was necessary to

establish an essential fact, we are not persuaded that Gross’s testimony at the

temporary orders hearing, under these circumstances, precludes him from

continuing to serve as Charles’s attorney.3 See In re Villasanta, No. 01-11-00474-

CV, 2011 WL 4398557, at *2 (Tex. App.—Houston [1st Dist.] Sept. 22, 2011, no

pet.) (holding trial court abused its discretion in disqualifying attorney because

movant did not show that attorney’s testimony was only source of evidence for



3
      We also note Diana made no showing of prejudice or harm relating to Gross’s
      continued representation of Charles. See Ayres v. Canales, 790 S.W.2d 554, 557–
      58 (Tex. 1990). On the contrary, Diana argues in her response that Gross’s
      testimony helps her case in some respects.
                                         9
disputed issue); In re Garza, 2012 WL 556311, at *3 (same); In re Bivins, 162

S.W.3d 415, 421 (Tex. App.—Waco 2005, orig. proceeding) (same).

                                   Conclusion

      We hold that Diana’s request for disqualification did not meet the exacting

standards by which motions to disqualify opposing counsel must be judged, and

that the trial court’s order disqualifying Gross from serving as Charles’s attorney

constitutes an abuse of discretion for which there is no adequate remedy by

appeal. Accordingly, we direct the trial court to vacate its order disqualifying

Gross from representing Charles in the underlying proceeding. Our writ of

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




                                             Rebeca Huddle
                                             Justice

Panel consists of Justices Higley, Sharp, and Huddle.




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