Opinion
04-21-00457-CV
05-11-2022
IN RE Gilbert VELASQUEZ, individually, and D/B/A/ Gilbert Velasquez Music
This proceeding arises out of Cause No. 2020-CI-09235, styled Pena v. Velasquez, pending in the 438th Judicial District Court, Bexar County, Texas, the Honorable Angelica Jimenez presiding.
Sitting: Luz Elena D. Chapa, Justice, Irene Rios, Justice Beth Watkins, Justice
OPINION
Irene Rios, Justice
In this original proceeding, relator Gilbert Velasquez maintains the trial court abused its discretion when it denied his motion to disqualify the attorney representing the real party in interest, Henry Pena. Velasquez contends he has no adequate remedy by appeal. After reviewing the pleadings, evidence, and applicable legal principles, we agree and conditionally grant Velasquez's petition for writ of mandamus.
Nature of the Dispute
This mandamus action arose from a business dispute between Henry Pena-owner and executive producer of the San Antonio Oldies Radio Show-and Gilbert Velasquez-a musician, music producer, and music engineer. In the past, Pena and Velasquez had a business relationship in which Velasquez produced Pena's San Antonio Oldies Radio Show. Pena solicited sponsors to obtain financial support for his radio show. Velasquez produced the show and produced what he alleges were commercials for show sponsors.
When the relationship ended, Pena asked Velasquez for master recordings of his shows. Velasquez returned some recordings, but Pena felt Velasquez failed to return other recordings and sued Velasquez for return of intellectual property. Velasquez answered and counter-sued, claiming Pena failed to pay him for producing 121 commercials.
One of the 121 alleged commercials featured the attorney representing Pena in his lawsuit against Velasquez. Upon realizing that, Velasquez filed a counterpetition against Pena's attorney for non-payment, and then moved to disqualify the attorney. Velasquez argued that Pena's attorney was a material fact witness and that the Texas Disciplinary Rules of Professional Conduct prohibit the attorney from serving as Pena's advocate and as a witness.
The trial court held a hearing on the motion to disqualify. Four witnesses testified: Velasquez, Pena, Pena's attorney, and a third-party sponsor of Pena's radio show. At the conclusion of the hearing, the trial court denied the motion without specifying a reason. Velasquez responded by initiating this mandamus action challenging the order denying his motion for disqualification.
Discussion
To obtain mandamus relief, Velasquez must show: (1) the trial court abused its discretion; and (2) he has no adequate remedy by appeal. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding).
Clear Abuse of Discretion
Velasquez can satisfy the first requirement for mandamus relief-an abuse of discretion- by showing the trial court acted without regard for guiding legal rules or principles or supporting evidence. In re Garza, 544 S.W.3d 836, 840 (Tex. 2018) (orig. proceeding). If the evidence shows disputed fact questions, the reviewing court may not decide the fact questions. Hooks v. Fourth Court of Appeals, 808 S.W.2d 56, 60 (Tex. 1991) (orig. proceeding). The existence of fact questions, however, could bear on whether the trial court abused its discretion. Walker, 827 S.W.2d at 840 (holding the trial court's failure to correctly analyze or apply the law to the facts constitutes abuse of discretion).
In this case, rule 3.08 of the Texas Disciplinary Rules of Professional Conduct provides the guiding legal rule for attorney disqualification. See In re Sanders, 153 S.W.3d 54, 56 (Tex. 2004) (orig. proceeding). Rule 3.08 states:
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 . . . .Tex. Disciplinary Rules Prof'l Conduct 3.08(a), reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G, app. A (Tex. State Bar R. art. X, § 9) (emphasis added).
Notably, the rule does not prevent an attorney witness from working on a case. See Tex. Disciplinary Rules Prof'l Conduct 3.08(a) cmt. 8, reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G, app. A; In re Guidry, 316 S.W.3d 729, 738 (Tex. App.-Houston [14th Dist.] 2010, orig. proceeding). Instead, the rule prevents an attorney witness from acting as an advocate before a tribunal. Guidry, 316 S.W.3d at 738. Rule 3.08 applies because Pena's attorney is or may be a witness necessary to establish an essential fact on Pena's behalf-and may even contradict Pena. Pena's attorney maintains she can serve as an advocate without serving as a witness, but the record shows otherwise.
In his motion, and during the hearing, Velasquez explained why he named Pena's attorney as a defendant. Velasquez testified, and attested, that Pena approached him about recording, editing, and producing commercials for sponsors of the San Antonio Oldies Radio Show, including an attorney sponsor. According to Velasquez, Pena told him the attorney wanted to advertise her law firm and represented that he had authority to act on the attorney's behalf.
Velasquez testified that he produced a commercial for the attorney but neither Pena nor the attorney paid for the commercial. After Pena sued Velasquez for withholding recordings, Velasquez hired an attorney, answered Pena's petition, and counterclaimed for payment of 121 unpaid commercials. When he presented the list of unpaid commercials to his attorney, Velasquez recalled that one of the 121 commercials was for the attorney who now represents Pena. Velasquez then billed the attorney $750 for the commercial and named the attorney as a defendant in a counterpetition when she did not pay. Pena's evidence contradicted Velasquez's testimony.
Velasquez's counterclaims included breach of contract, quantum meruit, unjust enrichment, promissory estoppel, and assumpsit/money had and received.
Pena testified that the money he paid Velasquez for producing shows included the cost of producing commercials. At times, he referred to Velasquez's list of unpaid recordings as "commercials," and at other times, he characterized the recordings as "air mention," "a tag," or "sponsorship." Pena recalled doing a "voiceover" for the attorney, stating that the attorney practiced family law and criminal law and telling listeners to call the attorney. He stated that the attorney paid him to sponsor his show.
Although Pena's attorney maintained she need not testify to respond to the counterpetition, she called herself as a witness during the hearing and testified at length. Pena's attorney insisted Velasquez did not produce a commercial for her and that the recording played during the hearing was a fabrication and a redacted version of the originally aired show. She characterized the recording as a sponsorship, not a commercial. Pena's attorney testified she did not authorize Velasquez to produce a commercial, but instead provided Pena with sponsorship language. Pena's attorney further testified she did not owe Velasquez money. She also disputed the date of the alleged commercial.
Pena's last witness was associated with four of the alleged unpaid commercials. The witness testified that he had not dealt with Velasquez directly but asked Pena for commercials. He had not received invoices for commercials and referred to the commercials as commercials, not sponsorships. The transcript of the recording played during the hearing is ambiguous as to whether it is a commercial or sponsorship.
The evidence admitted at the hearing raised several fact questions, such as: (1) whether Velasquez produced commercials for Pena; (2) whether the recording underlying the claim against Pena's attorney is a commercial or a sponsorship; (3) whether Pena's attorney requested, authorized, or consented to the production of a commercial; and (4) whether Pena's attorney owes Velasquez $750.
These questions are material to the resolution of Velasquez's counterpetition because Velasquez claims Pena and his attorney owe him money for unpaid work. Although Pena's attorney maintained she could serve as an advocate before a tribunal without serving as a witness, she called herself as a witness during the hearing on the motion to disqualify and testified at length about material fact questions. Under these circumstances, Velasquez met his burden to show Pena's attorney is or may be a witness necessary to establish an essential fact on Pena's behalf. In the absence of an exception, representing Pena before a tribunal and testifying as a witness would violate rule 3.08.
Rule 3.08 has five exceptions, but no exception allows the attorney to represent Pena before a tribunal. Tex. Disciplinary R. Prof'l Conduct R. 3.08(a). The first exception-the testimony relates to an uncontested issue- does not apply because the parties contest whether Pena and Pena's attorney owe Velasquez for producing commercials and whether alleged unpaid recordings constitute commercials, sponsorship, or air mention. Id. R. 3.08(a)(1). The second exception-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-does not apply because Velasquez will, and has, offered substantial evidence contradicting the testimonies of Pena and his attorney. Id. R. 3.08(a)(2). In addition, Pena and his attorney will, and have, offered substantial evidence contradicting Velasquez's testimony. The third exception-the testimony relates to the nature and value of legal services rendered in the case-does not apply because Pena's attorney will testify about matters other than the nature and/or value of legal services. Id. R. 3.08(a)(3). The fourth exception-the lawyer is a party to the action and is appearing pro se-does not apply to Pena's case because his attorney is a party in the dispute. Id. R. 3.08(a)(4). The attorney can represent herself, but the motion sought to disqualify the attorney from representing Pena before a tribunal. The fifth exception-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-does not apply because Pena's attorney did not notify Velasquez's attorney that she expects to testify or that her disqualification would work as a substantial hardship on Pena. Id. R. 3.08(a)(5); accord In re Guidry, 316 S.W.3d 729, 740 n.14 (Tex. App.-Houston [14th Dist.] 2010, orig. proceeding) (fifth exception did not apply because attorney subject to disqualification had not provided required notification).
Even if Velasquez shows a violation of rule 3.08, he must show he will suffer prejudice if the trial court does not disqualify Pena's attorney. See In re Murrin Bros. 1885, Ltd., 603 S.W.3d 53, 57 (Tex. 2019) (orig. proceeding). Velasquez argued that allowing the attorney to serve as Pena's advocate before the tribunal and as a witness would confuse the jury; in particular, the jury might not know whether the attorney served as a lawyer or as a witness responding to a debt. This concern underlies rule 3.08:
[T]he principal concern over allowing a lawyer to serve as both an advocate and witness for a client is the possible confusion that those dual roles could create for the finder of fact. . . . If . . . the lawyer's testimony concerns a controversial or contested matter, combining the roles of advocate and witness can unfairly prejudice the opposing party.Tex. Disciplinary Rules Prof'l Conduct 3.08 cmt. 4.
Velasquez placed this prejudice squarely before the trial court. However, the trial court had to also consider whether Pena would suffer prejudice from the disqualification of his attorney. See Murrin Bros. 1885 Ltd., 603 S.W.3d at 57. During the hearing, Pena's attorney relied on the timeline of the events to establish prejudice, but the timeline shows little had occurred in the case. The parties had filed pleadings and exchanged initial discovery but taken no depositions. Pena's attorney estimated spending between seven and eight hours-and perhaps four more hours responding to discovery-on the case prior to becoming a defendant. Under these circumstances, Pena would suffer no meaningful prejudice, especially considering rule 3.08 allows the attorney to continue to work on the case, just not before a tribunal. See In re Bahn, 13 S.W.3d 865, 873 (Tex. App.-Fort Worth 2000, orig. proceeding) ("[A]n attorney who is disqualified from representation at trial can continue to participate in the client's case until trial commences; he [or she] may continue to assist in pretrial matters such as drafting pleadings, engaging in settlement negotiations, and assisting in trial strategy.").
Adequate Remedy By Appeal
Velasquez can satisfy the second requirement for mandamus relief-inadequate remedy by appeal-because the inappropriate denial of a motion to disqualify is an abuse of discretion for which there is generally no adequate remedy on appeal. In re Turner, 542 S.W.3d 553, 555 (Tex. 2017) (orig. proceeding). Accordingly, Velasquez does not have an adequate remedy by appeal.
CONCLUSION
We conclude the trial court abused its discretion by denying relator's motion to disqualify the attorney and Velasquez has no adequate remedy by appeal. We therefore conditionally grant the petition for writ of mandamus and order the trial court to (1) vacate its September 23, 2021, order denying the relator's motion to disqualify, and (2) grant the relator's motion to disqualify. The writ of mandamus will issue only if the trial court fails to comply within fifteen days from the date of this opinion.