dissenting.
I respectfully dissent and would grant writ to order rescission of the trial court’s disqualification order in toto.
Rule 3.08
Rule 3.08 of the Texas Disciplinary Rules of Professional Conduct forbids a lawyer from accepting or continuing employment as an advocate before a tribunal when he knows or reasonably believes he may be a witness necessary to establish an essential fact on behalf of his client.1 The rule was crafted not as a rule of procedure, but rather as a rule defining proper conduct for disciplinary proceedings. See Tex.DisciplinaRY R.PROF.Conduct preamble para. 10, Rule 3.08 comments 9 & 10 (Vernon Supp.1996); Ayres v. Canales, 790 S.W.2d 554, 556 n. 2 (Tex.1990); House v. State, 909 S.W.2d 214, 217 (Tex.App.—Houston [14th Dist.] 1995, no writ) (Rule 3.08 not well-suited as standard for procedural disqualification); May v. Crofts, 868 S.W.2d 397, 399 (Tex.App.—Texarkana 1993, no writ). As Robert Wise observed, “In most situations Texas Rule 3.08 makes the client the arbitrator of whether the lawyer-witness or his law firm can continue the representation. Accordingly, under the Texas Rules, the lawyer-witness rule should be a rare basis for disqualification motions in the future.”2 In this case, it is not the client who moved for disqualification, it is the opposing party.
*858The rule poses a heavy burden on the party seeking disqualification. The moving party must not only present evidence that the testimony of the subject lawyer is “necessary,” but must also connect that testimony to an “essential fact” of the non-movant’s case.3 May v. Crofts, 868 S.W.2d at 399. This test places a higher burden of proof upon the movant than was previously required under the Code of Professional Responsibility. As Robert Wise noted, “This permits a court to delay ruling until it can be determined that no other witness can testify or that the testimony is highly relevant to the dispute.” Wise, The Lawyer-Witness Rule, 31 S.Tex.L.Rev. at 666.
At the hearing before Judge Montalvo, Poeniseh stated repeatedly that he did not intend to testify, that he would introduce the five letters as business records, and would not need to personally testify to establish this evidence. Poenisch’s testimony at the disqualification hearing does not invoke Rule 3.08(a). The fact that Poeniseh drafted three of the five letters which he intends to offer as evidence in the conversion action does not automatically put him at odds with section (a) of the rule. See May v. Crofts, 868 S.W.2d at 399 (drafter of will not disqualified from defending will contest).
Although the burden of proof is movant’s, at the hearing movant’s counsel merely declared Poeniseh to be a material witness, the one alleging what happened, the one alleging that parts of Pfeifer’s file were missing. At that point Judge Montalvo simply shifted the burden to the non-movant, in effect, asking Mr. Poeniseh to state why he is not a material witness.
Although not discussed at the hearing, Pfeifer, in his brief, analogizes these letters to the controverting affidavit used to defeat summary judgment in Mauze v. Curry. In that legal malpractice case, the Supreme Court found the extensive affidavit by defense counsel to be the equivalent of a testifying expert, indeed, the sole testifying expert on behalf of the client. The Supreme Court emphasized that “[tjhere was no other expert evidence concerning legal malpractice or causation,” and it found a clear abuse of discretion in the denial of the motion to disqualify counsel. See Mauze v. Curry, 861 S.W.2d 869, 870 (Tex.1993) (orig. proceeding).
Pfeifer also compares the Poeniseh letters to the extensive testimony of a material fact witness and prosecuting attorney in Warrilow v. Norrell, 791 S.W.2d 515 (Tex.App.—Corpus Christi 1989, writ denied).4 The testifying attorney was found to be a material fact witness who had designated himself to testify on essential elements of the claim. Warrilow, at 520. Both cases cited by Pfeifer involve extensive testimony initiated by the subject attorney on behalf of his client. Based on the meager evidence presented at the hearing in this case, however, I find the letters to be more analogous to the will contest situation in May v. Crofts.
In fact, it is opposing counsel who indicated he would call Poeniseh as a fact witness in the conversion action. No evidence was presented by the movant which developed the specific facts to which Poeniseh would be asked to testify or that such evidence was unavailable from any other source.5 This is in sharp contrast to the record presented in Warrilow which clearly demonstrated the *859lawyer’s testimony to be material and necessary to the Ghent’s cause of action and did not fall within any exception to the former code provision prohibiting further representation in that instance. See Warrilow, 791 S.W.2d at 520. Nor does the disqualification order recite with any specificity the necessity of Poenisch to serve as a fact witness. The Supreme Court has stated that the trial court should be able to state without difficulty the precise factors establishing the disqualification. See Coker, 765 S.W.2d at 400; e.g., United Pacific Ins. Co. v. Zardenetta, 661 S.W.2d 244, 247, 249 (Tex.App.—San Antonio 1983, orig. proceeding) (pretrial order specified material facts which directly involved attorney’s testimony).
The rule does not contain a specific provision to deal with testimony elicited on behalf of another party. Robert Wise suggests that such situations should be analyzed under rule 3.08(b). See Wise, The Lawyer-Witness Rule, 31 S.TexL.Rev. at 672. Under section (b), a lawyer is not automatically disqualified merely because an opposing party intends to call him as a witness. The moving party must establish that the lawyer’s testimony will be “substantially adverse” to his client. Even then, the lawyer may continue his representation with his client’s consent. Id.; Rule 3.08(b). Pfeifer failed to present any evidence that Poenisch’s testimony would be substantially adverse to Spain, and there is no evidence concerning Spain’s position on this matter for purposes of section (b).
Finally, the party seeking disqualification must demonstrate actual prejudice to itself stemming from the dual role of a lawyer-witness opponent. See Rule 3.08 comment 10; Ayres v. Canales, 790 S.W.2d at 558; May v. Crofts, 868 S.W.2d at 399 & n. 2. Comment 4 of the rule recognizes that when the testimony of a lawyer concerns a controversial or contested matter, possible confusion by the finder of fact may result in unfair prejudice to the opposing party. The Ayres court found a clear abuse of discretion where a judge disqualified a lawyer without the requisite demonstration of harm by the moving party. Ayres, at 558; see also Stanley v. State, 880 S.W.2d 219, 221 (Tex.App.—Fort Worth 1994, no pet.) (movant failed to show actual prejudice); Johnson v. City of Houston, 813 S.W.2d 227 (Tex.App.—Houston [14th Dist.] 1991, no writ) (movant failed to show actual prejudice).
Judge Montalvo did not hear any specific evidence of prejudice to the moving party. Without clearly stating what Poenisch’s testimony would involve, Pfeifer asserted that it would nevertheless be disputed. The only harm analysis conducted dealt with the client’s inability to find another lawyer should disqualification be ordered.6 At oral argument, Pfeifer’s counsel relied on Warrilow and Koch Oil Co. v. Anderson Producing, 883 S.W.2d 784 (Tex.App.—Beaumont 1994, writ granted), for the proposition that the opposing party is automatically, unequivocally prejudiced when an attorney takes the stand to testify while simultaneously serving as advocate in the matter. It is important to remember that in both of these cases, the testifying attorney put himself on the stand to present extensive fact and opinion evidence, he was not called to testify at the insistence of opposing counsel. In this case, the attorney states he intends to rely on other witnesses and procedures to present his evidence. For us to assume at this early stage in the development of the ease that Poenisch’s own testimony is essential to his client’s case, would be premature and presumptuous. It would put this Court in the uncomfortable position of second-guessing the plaintiffs trial strategy when no specific evidence of such was presented to Judge *860Montalvo. Cf. Wise, The Lawyer-Witness Rule, 31 S.Tex.L.Rev. at 666.
Courts are required to utilize an exacting standard when considering motions to disqualify so that such motions are not misused as tactical weapons in litigation. See Rule 3.08 comment 10; Spears v. Fourth Court of Appeals, 797 S.W.2d 664, 656 (Tex.1990); Ayres, 790 S.W.2d at 558; Coker, 765 S.W.2d at 399. I would find that the trial court clearly abused its discretion when it ordered Poenisch disqualified based on real party’s mere assertion that he intended to call Poen-isch as a fact witness. The record reflects that Pfeifer did not meet his heavy burden of showing specific evidence that could only be elicited from Poenisch, and that should he testify, what specific harm Pfeifer would suffer as a result of Poenisch’s dual role as lawyer and witness.
The order of disqualification should be rescinded for another reason, as well. The order itself also goes further than Rule 3.08 would require by forbidding Poenisch from participating in any capacity as an attorney in this litigation. In 1994, the rule was amended to clarify that such disqualifications were limited to appearances “as an advocate before a tribunal.” SupReme COURT of Texas, Rules GoveRning the State Bak of Texas art. X, § 9 (Texas Disciplinary Rules of Professional Conduct) (Vernon Supp.1996), reprinted in 3 Tex. Gov’t Code Ann. Title 2, Subtitle G — -Appendix (Vernon Supp.1996). The rule does not necessarily prohibit a testifying attorney from working on the case in some other capacity.
. Supreme Court of Texas, Rules Governing the State Bar of Texas art. X, § 9 (Texas Disciplinary Rules of Professional Conduct) (Vernon Supp. 1996), reprinted in Tex Gov’t Code Ann. Title 2, Subtitíe G — Appendix (Vernon Supp. 1996). The State of Texas overhauled its rules for governing the conduct of licensed attorneys in 1989. The operative rules became effective on January 1, 1990, and are known as the Texas Disciplinary Rules of Professional Conduct. They are located in volume 3 of the Government Code at article X, section 9. In 1994, the Supreme Court amended Rule 3.08 to add the limiting phrase “as an advocate before a tribunal” to the first sentence.
Rule 3.08 reads in full, as follows:
Rule 3.08. Lawyer as Witness
,(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;
(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.
(b) A lawyer shall not continue as an advocate in a pending adjudicatory proceeding if the lawyer believes that the lawyer will be compelled to furnish testimony that will be substantially adverse to the lawyer’s client, unless the client consents after full disclosure.
(c) Without the client’s informed consent, a lawyer may not act as advocate in an adjudicatory proceeding in which another lawyer in the lawyer’s firm is prohibited by paragraphs (a) or (b) from serving as advocate. If the lawyer to be called as a witness could not also serve as an advocate under this Rule, that lawyer shall not take an active role before the tribunal in the presentation of the matter.
. A review of opinions construing Rule 3.08 since its adoption in 1990 by this court finds only one reported case where the disciplinary rule has been used successfully as a procedural tool to *858disqualify a lawyer-witness. See Mauze v. Curry, 861 S.W.2d 869 (Tex.1993) (orig. proceeding).
.Under the former Code of Professional Responsibility, a looser test for lawyer-witness disqualification existed. The test was whether the lawyer knew or it was obvious that he or a lawyer in his firm ought to be called to testify for the client. The language of DRs 5-101(B) and 5-102(A) was subject to ambiguity and criticism for encouraging abuse of the rule early in the development of the case before discovery had been conducted and trial strategies formulated. The new rule cures this problem by limiting disqualification proceedings with a more clear and narrow test, i.e., the testimony must be necessary and relate to an essential fact. See Wise, "The Lawyer-Witness Rule,” 31 S.TexX.Rev. at 664-66.
. The Warrilow opinion involved the circumstances analyzed under the former Code of Professional Responsibility, nevertheless, the court noted it would reach a similar result under new Disciplinary Rules of Professional Conduct. Warrilow, 791 S.W.2d at 524 n. 11.
. Although Pfeifer's counsel elaborated at oral argument on the testimony he intended to solicit from Poeniseh, such was outside the record and may not be considered for purposes of this opinion.
. The issue of “substantial hardship” is found in exception (a)(5) to the Rule and permits a lawyer-witness to continue his representation in certain circumstances if disqualification would work a substantial hardship on the lawyer's client. When a lawyer intends to testify in such a situation he must give the opposing counsel prompt notice of this fact. The notice provision was added to prevent the testifying lawyer from creating a "substantial hardship” where none existed initially, merely by representing the client throughout the pre-trial period and failing to notify opposing counsel of an intention to testify at trial. Robert P. Schuwerk and John F. Sutton, Jr., A Guide to the Texas Disciplinary Rules of Professional Conduct, 27A Houston L.Rev. 1, 321 (1990). Notice has not been given in this case because Poenisch has consistently stated that he does not intend to call himself as a witness.