dissenting.
The issue in this case is whether a non-settling defendant can force the disqualification of the plaintiffs lawyer and his law firm because the plaintiffs lawyer negotiated a settlement with and co-opted the testimony of a defecting defendant after the latter had terminated the services of his lawyer. The obvious answer is no, but in an opinion based on an erroneous view of the facts and the law, the majority says disqualification is justified. Accordingly, I respectfully dissent.
The majority begins with the mistaken assumption that Akin Gump, representing the plaintiffs, violated the rules of professional conduct by meeting with defendant Don Frazier at a time when he was represented by counsel. This interpretation of the record is not supported by the evidence. It is uncon-troverted that it was Frazier who initiated the contact with Akin Gump. What happened when he got there is less clear, but there is at least some evidence that before any discussions took place, Frazier provided Akin Gump with a letter clearly stating he was no longer represented by counsel. Indeed, *106there is no evidence of any improper discussions between Frazier and the Akin Gump lawyers before Frazier fired his lawyer. Under these facts, the contact between the Akin Gump lawyers and Frazier was not prohibited by the disciplinary rule the majority cites to bar such contact. See Tex. DISCIPLINARY R. PROP. CONDUCT 4.02 (Vernon Supp.1998).
In evaluating the propriety of the lawyers’ actions with respect to their contact with Frazier, we must consider who Rule 4.02 applies to, and whose interests it is supposed to protect. The anti-contact rule is designed to keep a lawyer from taking advantage of an opposing party who is untrained in the law and who has hired a lawyer to represent his interests. But the anti-contact rule cannot apply to protect unrepresented parties — opposing lawyers must be able to contact pro se litigants. Also, as a lawyer disciplinary rule, it cannot apply to non-lawyer parties who initiate contact with represented opposing parties. In short, the anti-contact rule applies only against lawyers and protects only represented parties against contact by opposing lawyers. In this case, the evidence fairly shows that the contact with Akin Gump was initiated by Frazier, and that he was not represented by counsel at the time. Consequently, the anti-contact rule does not apply.
Even if the rule were to apply, the relators do not have standing to complain. As noted, the rale is meant to protect represented parties against contact by opposing lawyers. The relators do not complain that the Akin Gump lawyers improperly contacted them. Rather, the complaint is that the Akin Gump lawyers should not have talked with Frazier before confirming that Frazier’s lawyer knew he had been fired. If there is a complaint, it is Frazier who should be complaining. And he is not complaining, of course, because he sought out the contact. Undoubtedly the relators feel victimized by what happened, but their complaint is with Frazier, not Akin Gump.
As a matter of professional courtesy, most lawyers would confirm with counsel that the attorney-client relationship had been severed before entering into discussions with an opposing party. But there is no requirement in the law to do so. If the Akin Gump lawyers had phoned Frazier’s lawyer, Mark Cannan, to let him know Frazier was there, acting on his own to negotiate a settlement, Cannan might have tried to dissuade Frazier from his planned course of action. However, if Frazier was intent on proceeding, there was nothing Cannan or the other defendants could have done about it. Frazier was not prohibited from contacting the plaintiffs’ attorneys in an attempt to negotiate his way out of the lawsuit, whether or not Cannan was notified in advance of his termination. The result to the relators is the same either way. Once Frazier decided to go his own way, whether by himself or with new counsel, any defensive strategies or confidential communications between defendants could not have been protected by any belated attempted preemptive measures.
The majority has stripped the plaintiffs of their attorneys of choice because of an act by a party over whom they had no control. Even if it is assumed the Akin Gump lawyers were guilty of some unethical behavior in this, nothing justifies the extreme sanction of disqualification which goes too far in penalizing the ostensibly innocent clients. Any misconduct of the lawyers is a matter best left for disposition through the grievance procedures of the State Bar of Texas.
Under the record in this case, the trial court was entitled to believe that Don Frazier was unrepresented at the time of his meeting with the Akin Gump lawyers, and that it was he, and not the law firm, that initiated the contact. That being the case, it was not an abuse of discretion for the trial court to refuse to disqualify the Akin Gump law firm or the affected lawyers. Because the majority holds otherwise, I respectfully dissent.