i          i      i                                                                                i        i        i




                                                    OPINION
                                              No. 04-09-00649-CV

                                        IN RE NINO SANDOVAL,
                                       Original Mandamus Proceeding1

Opinion by:       Sandee Bryan Marion, Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: December 18, 2009

PETITION FOR WRIT OF MANDAMUS ABATED

           On July 1, 2009, in the underlying proceeding, relator, Nino Sandoval, filed a motion to

modify final orders in a suit affecting the parent-child relationship of his two children. The next day,

Sandoval and his twelve-year-old son appeared in the law offices of Sandoval’s attorney at which

time the child signed a Choice of Managing Conservator By Child 12 Years or Older (“the Choice

Document”), in which the child asked that his father serve as managing conservator. Sandoval’s

attorney, Adam Cardenas, Jr., notarized the document. That same afternoon, Sandoval filed an

amended motion attaching the Choice Document. A jury trial was set to commence on August 10,

2009. On that date, Sandoval’s former wife, Olivia Allen, filed a motion to disqualify Cardenas.




          … This proceeding arises out of Cause No. 2003-CI-15135, styled In the Interest of N.S. and A.S., filed in the
           1

407th Judicial District Court, Bexar County, Texas. However, the Honorable Andy Mireles, presiding judge of the 73rd
Judicial District Court, Bexar County, Texas, conducted the hearing and ruled on the motion that is the subject of this
proceeding.
                                                                                             04-09-00649-CV

        Allen’s motion to disqualify Sandoval’s attorney was based on a single ground: because

Cardenas notarized the Choice Document, he is a fact witness in the case, and, therefore, under State

Bar Rule of Professional Conduct 3.08, he cannot serve as attorney of record. After a hearing on the

motion, at which only Cardenas testified, the trial court granted the motion.2 In this mandamus

proceeding, Sandoval asserts the trial court abused its discretion in doing so. 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) (orig. proceeding).

                                               ANALYSIS

         Rule 3.08 was “promulgated as a disciplinary standard rather than one of procedural

disqualification, but [courts] have recognized that the rule provides guidelines relevant to a

disqualification determination.” Id. The rule provides as follows,

                 A lawyer shall not . . . continue employment as an advocate before a tribunal
        in a . . . 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; 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 R. PROF’L CONDUCT 3.08(a), reprinted in TEX . GOV ’T CODE, tit. 2, subtit. G app.

A (Tex. State Bar R. art. X, § 9).


        2
         … Although Allen’s motion asked only that Cardenas be disqualified, the trial court also disqualified
Cardenas’s law partner, Andrea Hernandez.

                                                     -2-
                                                                                     04-09-00649-CV

       Disqualification is a severe remedy because it can cause immediate harm by depriving a party

of its chosen counsel and disrupting court proceedings. In re Sanders, 153 S.W.3d at 57. Courts

must adhere to an exacting standard when considering motions to disqualify so as to discourage their

use as a dilatory trial tactic. Spears v. The Fourth Court of Appeals, 797 S.W.2d 654, 656 (Tex.

1990) (orig. proceeding). The party moving for disqualification must establish with specificity a

violation of one or more of the disciplinary rules. Id. Thus, mere allegations of unethical conduct

or evidence showing only a remote possibility of a violation of the disciplinary rules are not

sufficient to merit disqualification. In re Sanders, 153 S.W.3d at 57.

       The fact that a lawyer serves as both an advocate and a witness does not, standing alone,

compel disqualification. Id. Disqualification is only appropriate if the lawyer’s testimony is

“necessary to establish an essential fact on behalf of the lawyer’s client.” TEX . DISCIPLINARY R.

PROF’L CONDUCT 3.08(a). Therefore, disqualification is inappropriate under Rule 3.08 when

opposing counsel merely announces her intention to call the attorney as a fact witness without

establishing a genuine need for the attorney’s testimony and that the testimony goes to an essential

fact. In the Int. of A.M., 974 S.W.2d 857, 864 (Tex. App.—San Antonio 1998, no pet.). Also, the

party moving for disqualification must show that the opposing lawyer’s dual roles as attorney and

witness will cause the moving party actual prejudice. In re Sanders, 153 S.W.3d at 57; Ayres v.

Canales, 790 S.W.2d 554, 558 (Tex. 1990) (orig. proceeding). Without these limitations, 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 lawyer “should not seek to disqualify an opposing lawyer by unnecessarily calling




                                                -3-
                                                                                       04-09-00649-CV

that lawyer as a witness”). For the reasons discussed below we conclude Allen did not meet the

burden necessary to prevail on her motion to disqualify Sandoval’s attorney.

       First, Allen did not establish that Cardenas’s testimony is necessary to establish an “essential

fact” on Sandoval’s behalf. We agree the child’s choice of his father as managing conservator is an

essential element in the modification proceeding. However, as the notary, Cardenas would not

testify to the reasons, motives, or circumstances leading to the child’s choice. Cardenas’s testimony

that he notarized the Choice Document is not an essential element in a modification proceeding.

Even assuming Cardenas’s notarization of the child’s signature was an essential fact, Allen did not

establish that his testimony was necessary to establish that fact. In addition to Cardenas, the child,

Sandoval, Sandoval’s girlfriend, and Cardenas’s law partner, Andrea Hernandez, were all present

at the signing. Allen failed to explain why the testimony of the child, Sandoval, or Sandoval’s

girlfriend was insufficient to establish the circumstances of the child signing the document. See In

re Sanders, 153 S.W.3d at 57 (because movant did not explain why other sources were insufficient,

movant failed to show necessity of attorney’s testimony).

       Second, Allen failed to show Cardenas’s dual roles as attorney and witness would cause her

actual prejudice. Allen’s attorney never indicated an affirmative intention to call Cardenas as a

witness. Instead, during questioning of Cardenas, Allen’s attorney prefaced her question with “if I

call you during the jury trial.” During arguments to the court, following testimony, Allen’s attorney

merely stated, “if I’m having to call him as a witness.” Finally, nothing in the evidence presented

to the court pertains to whether Allen would suffer actual prejudice. Neither at the disqualification

hearing nor in this mandamus proceeding, does Allen argue or explain how Cardenas’s testimony

would cause her actual prejudice.



                                                 -4-
                                                                                      04-09-00649-CV

                                         CONCLUSION

       We conclude the trial court erred in granting Allen’s motion to disqualify Sandoval’s

attorneys. Accordingly, we were prepared to conditionally grant the writ and order the trial judge

to withdraw that portion of his Order dated August 25, 2009 in which he grants “Respondent’s

motion to disqualify Petitioner’s attorneys, Adam Cardenas Jr. and Andrea M. Hernandez.”

However, prior to the issuance of our opinion, the trial judge who signed the order, the Honorable

Andy Mireles, passed away. Because this case was filed in the 407th Judicial District Court, we

abate this proceeding and remand to allow the Presiding Judge of the 407th Judicial District Court

to reconsider Judge Mireles’s ruling in light of this opinion.



                                                       Sandee Bryan Marion, Justice




                                                 -5-
