Opinion issued August 9, 2012.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00497-CV
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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.
3
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
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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.
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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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in Re Charles Leyendecker
Combined Opinion