I respectfully dissent from the majority's decision to conditionally grant the petition for writ of mandamus. *Page 213
Mandamus will issue only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no adequate remedy at law. Republican Party of Tex. v. Dietz,940 S.W.2d 86, 88 (Tex. 1997) (orig.proceeding). With respect to the resolution of factual issues or matters committed to the trial judge's discretion, we may not substitute our judgment for that of the trial judge unless the relator establishes that the trial judge's decision is arbitrary and unreasonable. Walker v.Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig.proceeding). The "employment" referred to by the majority is the performance of handyman jobs that Bill Sanders did for Mary McKnight after hours to help defray the cost of attorney's fees. The record before us supports the trial judge's determination that any confusion caused by McKnight's testimony regarding Bill's completion of the jobs for her would be de minimis.
Additionally, disciplinary rule of professional conduct 3.08 should not be used as a tactical weapon to deprive the opposing party of the right to be represented by the lawyer of his or her choice because reducing the rule to such a use would subvert its purpose. TEX. DISCIPLINARY R. PROF'L CONDUCT 3.08 cmt. 10,reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G app. A (Vernon 1998) (TEX. STATE BAR R. art. X, § 9). That is precisely what happened in this case. Relator's attorney was aware of issues regarding the handyman work for at least nine months prior to the priority jury trial setting in this case. Counsel waited until two months before trial to designate McKnight as a witness that he would call and move to disqualify her from representing her client.
In this bitterly contested divorce and custody case, the trial judge was in a much better position than the appellate court to evaluate the evidence, balance the competing interests, apply the law, and reach a decision. She did not reach a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error as a matter of law. Because the majority concludes the trial judge abused her discretion, I respectfully dissent. I would deny relator's petition writ of mandamus.