I respectfully dissent from the majority's finding of a clear abuse of discretion on the part of the trial court.
A relator seeking the vacation of an order denying a motion to disqualify has a heavier burden than a relator seeking the vacation of an order granting a motion to disqualify. J.K. and Susie L. Wadley Research v. Morris, 776 S.W.2d 271, 275 (Tex.App. — Dallas 1989, no writ). To prevent a motion to disqualify counsel from being used as a dilatory tactic, trial courts must strictly adhere to an exacting standard when considering such motions. NCNB Texas Nat'lBank v. Coker, 765 S.W.2d 398, 399 (Tex. 1989).
Having established that the attorney/client relationship once existed, the movant Industrial Accident Board then had the burden of clearly establishing that the matters involved in the pending suit are substantially related to the matters involved *Page 61 in the former representation. NCNB Texas Nat'l Bank at 400; Arkla Energy Resources v. Jones, 762 S.W.2d 694, 695 (Tex.App. — Texarkana 1988, no writ).
In the application of the "substantial relationship" rule the facts of each particular case will necessarily be determinative. See, e.g., Church of Scientology ofCalifornia v. McLean, 615 F.2d 691, 693 (5th Cir. 1980) (attorney for church consulted regarding zoning matter not disqualified in subsequent slander suit against church);Duncan v. Merrill Lynch, Pierce, Fenner and Smith,646 F.2d 1020, 1033 (5th Cir. 1981) (plaintiff's attorneys not disqualified in securities fraud action against brokerage firm which attorneys had served as counsel in prior matters of litigation); B. F. Goodrich Co. v. Formosa PlasticsCorp., 638 F. Supp. 1050, 1055 (S.D.Tex. 1986) (attorney consulted for potential employment in patent/anti-trust litigation not disqualified from subsequent employment as counsel for opposing party); Hydril Co. v. Multiflex,Inc., 553 F. Supp. 552, 557-58 (S.D.Tex. 1982) (patent/trademark attorney's longtime representation of party in areas of trade secrets, patents and trademarks not sufficiently related to the patented product which was subject of infringement suit so as to preclude representation of opposing party).
Because of the severity of the remedy of denying a party the counsel of his choice, the party seeking disqualification of his opponent's counsel must prove the substantial relationship by the preponderance of the evidence. NCNB Texas Nat'lBank v. Coker, 765 S.W.2d 398, 400 (Tex. 1989).
In the instant case the trial court found that the IAB did not meet its burden of proving a substantial relationship. The evidence showed clearly that Mrs. Maisel's involvement in this case was that of hearing a report of the incident. As the outgoing chairman of the board with only nine days remaining in her term, Mrs. Maisel understandably had no significant interest in the matter as no claim had yet been presented, no particular consequences were attached to the event by board personnel and there is no evidence of any legal advice or consultation requested of, or given by, Mrs. Maisel with reference to the incident. Based on the facts presented to the trial court, I would hold that the trial court did not abuse its discretion in weighing the evidence and denying the motion to disqualify.
Relator's alternative ground of disqualification is that Mrs. Maisel is a witness to be called at trial and therefore both she and the law firm of Tinsman Houser, Inc., are disqualified under former Disciplinary Rule 5-102, V.T.C.A. Government Code, Subtitle G — Appendix repealed, eff. January 1, 1990 and replaced by Texas Disciplinary Rules of Professional Conduct, Rule 3.08, 778 S.W.2d p. XCIII-XCIV. Under the former Disciplinary Rule 5-101, a lawyer was enjoined from accepting employment in a litigation matter if it is "obvious that he or a lawyer in his firm ought to be called as a witness," subject to several exceptions: (1) where his testimony relates solely to an uncontested matter; (2) where the testimony relates solely to a matter of formality as to which there is likely no substantial evidence to be offered in opposition; (3) the testimony relates to the value of legal services rendered in the case or (4) it would work a "substantial hardship" on the client for the lawyer to withdraw. Under former Disciplinary Rule 5-102, a lawyer was compelled to withdraw if after commencement of the litigation it became apparent that he would likely be a witness on behalf of his client. Conversely, a lawyer was also compelled under DR 5-102(B) to withdraw if it became clear that he could be called as a witness by a party other than his client andhis testimony might be prejudicial to his client. Under the new Rule 3.08 which became effective January 1, 1990, the guiding principles are much the same except that now, withdrawal is predicated on testimony relating to the establishment of an "essential fact on behalf of the lawyer's client." The final paragraph of the Comment to the new Rule 3.08 is instructive and has considerable application to the facts of this case. Rule 3.08, Comment par. 10 observes that "[A motion to disqualify] should not be used as a tactical *Page 62 weapon to deprive the opposing party of the right to be represented by the lawyer of his or her choice" and "[A] lawyer should not seek to disqualify an opposing lawyer by unnecessarily calling that lawyer as a witness."
In this case, the relator has been represented by the same assistant attorney general from the inception of the litigation. From the documents which initiated plaintiff's claim in October 1985, the board has known of Mrs. Maisel's involvement on behalf of the plaintiff. The board as a matter of law knows that Mrs. Maisel was its chairman on the day that the incident occurred.
The sole allegation of the relator concerning Mrs. Maisel as a witness is that "Ms. Maisel has knowledge regarding whether the board did or did not receive the requisite notice, which is notice of an incident and notice of an injury." The relator never listed Mrs. Maisel as a potential witness for trial. At the hearing on the motion to disqualify on January 4, 1990, plaintiff's counsel stipulated that plaintiff would not call Mrs. Maisel as a witness. Plaintiff expressly stated that he intended to establish notice of the claim through witnesses other than Mrs. Maisel and therefore did not believe her testimony necessary to his interests. If the plaintiff believed that Mrs. Maisel's testimony was vital to the establishment of the notice issue and could not be obtained through a non-disqualified source, the law firm of Tinsman Houser, Inc. would have no alternative but to withdraw from any representational role at trial. On the other hand, if the board believes that Mrs. Maisel's testimony will be helpful to its position, it may call her as a witness and in that event Tinsman Houser, Inc. and its client must make a determination of whether the testimony would be adverse to the client's interests. Further, after the case had been pending for four years, the relator decided two business days prior to trial that Mrs. Maisel's knowledge, if any, had become relevant and critical to the trial of the case.
The board has failed to meet its burden to show that the testimony to be elicited from Mrs. Maisel is material to its defense as well as prejudicial to the interest of the opposing attorney's client. Stocking v. Biery, 677 S.W.2d 792, 794 (Tex.App. — San Antonio 1984, no writ); White v.Culver, 695 S.W.2d 763, 765 (Tex.App. — El Paso 1985, no writ). The mere announcement by an adversary of his intention to call opposing counsel as a witness is insufficient to require such counsel's disqualification. White v.Culver, 695 S.W.2d at 765.
Finally, it is well settled that a motion for disqualification of an attorney on the basis of a conflict of interest may be waived if not timely asserted. Turner v.Turner, 385 S.W.2d 230, 236 (Tex. 1964); Cox v.American Cast Iron Pipe Co., 847 F.2d 725, 729 (11th Cir. 1988); Redd v. Shell Oil Co., 518 F.2d 311, 315-16 (10th Cir. 1975) ("So, if [movant] had filed the motion some months prior to the date of trial it would have merited serious attention and consideration. Why he postponed the filing until the Friday before the Monday on which the trial was to commence is inadequately explained"). Here, four years elapsed before relator determined that its motion to disqualify was critical to its case. The fact that the hearing on the motion was set two business days before trial certainly could have given rise to a reasonable belief on the part of the experienced trial judge that the motion was being pursued solely for the purpose of delay.
The relator is represented by the attorney general's office which has several hundred lawyers, any number of whom could have filed the motion to disqualify in the absence of the assistant attorney general assigned to the case. Further, the leave from work which is asserted to be the cause for the delay did not begin until approximately fifty days after the deposition which relator contends to be the critical date.
For all of the reasons stated above and based upon the evidence presented to the trial judge, I would hold that the trial judge did not commit a clear abuse of discretion *Page 63 and that the motion to disqualify was properly denied.