Summary
relying on caselaw that does not apply Rule 1.09, addressing Rule 3.08, and questioning attorney-client relationship in Rule 1.09 context premised in Rule 1.09
Summary of this case from In re LiebbeOpinion
No. 10-04-00166-CV
Opinion delivered and filed February 22, 2006.
Original Proceeding.
Petition conditionally granted.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA (Chief Justice GRAY dissenting).
MEMORANDUM OPINION
Gary Mack McDaniel seeks a writ of mandamus from this Court directing Respondent, the Honorable Robert Jones, sitting by assignment in the 66th Judicial District Court of Hill County, to vacate an order granting Glynda S. Clark's motion to disqualify McDaniel's counsel Bennett Brantley Aufill, III in the underlying suit. McDaniel contends in three issues that Respondent abused his discretion by disqualifying Aufill because: (1) there has been no showing that Clark "has an unqualified intent to call" Aufill to testify at trial; (2) Aufill did not have a prior attorney-client relationship with Clark; and (3) Respondent failed to follow "the substantial relation test" or find that Clark would suffer actual prejudice by Aufill's continued representation of McDaniel. We will conditionally grant the mandamus petition.
This proceeding was abated for a period of time when McDaniel filed bankruptcy. See In re McDaniel, 149 S.W.3d 860 (Tex.App.-Waco 2004, order). The bankruptcy has since been dismissed and this proceeding reinstated.
Background
Clark filed a forcible entry and detainer suit against McDaniel in justice court. McDaniel responded by filing a declaratory judgment action in district court seeking a determination of his rights to the property at issue. McDaniel also obtained a temporary injunction preventing Clark from evicting him during the pendency of his suit.
Proper Respondent
The elected judge of the 66th Judicial District Court is the Honorable F.B. McGregor, Jr., who signed the order for the temporary injunction. Respondent Judge Jones is a senior judge, who was assigned to preside over the hearing on Clark's motion to disqualify.
Because it was this Court's understanding that Judge Jones had been assigned only for the hearing on Clark's motion to disqualify Aufill on the particular date the motion was set for hearing, we abated this proceeding to allow McDaniel an opportunity to ask Judge McGregor to reconsider Judge Jones's ruling.
This Court was never provided a copy of the order of the administrative judge assigning Judge Jones to this case.
In response, Judge McGregor signed an order which quotes pertinent provisions of Judge Jones's assignment order and concludes that Judge Jones "has an ongoing assignment and obligation in this matter, and is lawfully empowered, and charged, with the responsibility to finish what he has started, per his assignment and applicable law." Thus, Judge McGregor declined to reconsider Judge Jones's ruling on the disqualification motion.
Because Judge Jones's assignment is ongoing, he is the proper respondent. See Remington Arms Co. v. Caldwell, 850 S.W.2d 167, 168 n. 1 (Tex. 1993) (orig. proceeding); In re Alsenz, 152 S.W.3d 617, 622-23 (Tex.App.-Houston [1st Dist.] 2004, orig. proceeding). Accordingly, we will review the merits of McDaniel's petition.
The Motion to Disqualify
Clark's motion to disqualify Aufill rests on two allegations: (1) that Aufill "could be a potential witness"; and (2) that Aufill previously had an attorney-client relationship with Clark involving "substantially related matters."
These allegations stem from the undisputed fact that Aufill drafted an assignment by which McDaniel and his former wife assigned to Clark their interest in a real estate lien note. The parties dispute whether this assignment was done in full or partial satisfaction of debts Clark owed McDaniel. Clark paid Aufill's fee for the drafting of the assignment.
Potential Witness
The potential of Aufill testifying invokes Rule of Professional Conduct 3.08. Rule 3.08(a) applies when an attorney may be called to testify regarding an essential fact of the client's case. See TEX. DISCIPLINARY R. PROF'L CONDUCT 3.08(a), reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G app. A (Vernon 2005) (TEX. STATE BAR R. art. X, § 9). Conversely, Rule 3.08(b) applies when an attorney may be compelled to testify in a manner "that will be substantially adverse to the lawyer's client." Id. 3.08(b). In either instance however, "rule 3.08 `should rarely be the basis for disqualification.'" In re Bivins, 162 S.W.3d 415, 421 (Tex.App.-Waco 2005, orig. proceeding) (quoting In re Chu, 134 S.W.3d 459, 464 (Tex.App.-Waco 2004, orig. proceeding)); accord Ayres v. Canales, 790 S.W.2d 554, 556 n. 2 (Tex. 1990) (orig. proceeding); TEX. DISCIPLINARY R. PROF'L CONDUCT 3.08 cmt. 9.
"[A] party seeking disqualification of an attorney under Rule 3.08 `must present evidence that the testimony of the lawyer is "necessary" and that it goes to an "essential fact" of the nonmovant's case.'" Bivins, 162 S.W.3d at 421 (quoting Chu, 134 S.W.3d at 464 (quoting In the Interest of A.M., 974 S.W.2d 857, 864 (Tex.App.-San Antonio 1998, no pet.))). "[A] party seeking disqualification in this situation should `demonstrate actual prejudice to itself resulting from the opposing lawyer's service.'" Id. (quoting TEX. DISCIPLINARY R. PROF'L CONDUCT 3.08 cmt. 10); accord Ayres, 790 S.W.2d at 558.
At the disqualification hearing, Aufill stated that he had no recollection of the facts surrounding his drafting of the assignment or of the reasons for it. Clark testified that she is "not sure" if she told Aufill why the assignment was being made or what consideration was being exchanged for it.
Clark at best established a potential for prejudice to herself because of Aufill's service as McDaniel's counsel. See Bivins, 162 S.W.3d at 421. She did not at all establish that Aufill's testimony will be "necessary" to establish an "essential element" of McDaniel's case. Id.; A.M., 974 S.W.2d at 864.
To have Aufill disqualified, Clark " must show" that "disqualification is necessary because the trial court lacks any lesser means to remedy [her] harm." Bivins, 162 S.W.3d at 421 (quoting In re Nitla S.A. de C.V., 92 S.W.3d 419, 423 (Tex. 2002) (orig. proceeding) (per curiam)). From the record, it does not appear that Clark proffered any lesser alternatives to Respondent or that Respondent on his own considered lesser alternatives. In failing to consider lesser alternatives such as prohibiting Aufill from testifying about the transaction, Respondent misapplied the law and committed a clear abuse of discretion by disqualifying Aufill because of his status as a potential witness. See id.; see also In re E.I. DuPont de Nemours Co., 136 S.W.3d 218, 223 (Tex. 2004) (orig. proceeding) (per curiam).
Attorney-Client Relationship
Clark also contends that Aufill should be disqualified because he drafted the assignment for her, thereby creating an attorney-client relationship between them. This contention invokes Rule of Professional Conduct 1.09, which prohibits an attorney from representing another person in a matter adverse to a former client under certain circumstances. See TEX. DISCIPLINARY R. PROF'L CONDUCT 1.09, reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G app. A (Vernon 2005) (TEX. STATE BAR R. art. X, § 9).
However, "[a]n attorney-client relationship is not created where a person hires an attorney in a non-legal capacity. Thus, an attorney-client relationship does not arise when a person hires an attorney to draft an instrument but does not seek the attorney's advice with respect to that instrument." Bivins, 162 S.W.3d at 419-20 (citations omitted).
"Disqualification is a severe remedy." Nitla, 92 S.W.3d at 422 (quoting Spears v. 4th Ct. of Apps., 797 S.W.2d 654, 656 (Tex. 1990) (orig. proceeding)); Bivins, 162 S.W.3d at 418. Therefore, a party seeking to disqualify opposing counsel must establish "actual prejudice." Nitla, 92 S.W.3d at 422; In re Sw. Bell Yellow Pages, Inc., 141 S.W.3d 229, 231 (Tex.App.-San Antonio 2004, orig. proceeding).
Here, Clark testified that she was "not sure" if she told Aufill the reasons the assignment was being made. Clark's lack of certainty regarding whether she shared confidential communications with Aufill concerning the reasons for the assignment does not suffice to establish " actual prejudice." See Sw. Bell Yellow Pages, 141 S.W.3d at 232.
Because Clark failed to establish actual prejudice and because Respondent failed to consider lesser alternatives, Respondent abused his discretion by granting Clark's motion to disqualify Aufill on this ground.
McDaniel has no adequate remedy at law. See Bivins, 162 S.W.3d at 417-18. Therefore, we conditionally grant the requested writ of mandamus. The writ will issue only if Respondent fails to advise this Court in writing within fourteen days after the date of this opinion that he has vacated the order granting Clark's motion to disqualify Aufill.