In re Chu
Decision Date | 25 February 2004 |
Docket Number | No. 10-03-272-CV.,10-03-272-CV. |
Citation | 134 S.W.3d 459 |
Parties | In re John K. CHU. |
Court | Texas Court of Appeals |
James V. Fulcher, Teague, for Appellant/Relator.
Robert York, Moe & York, Corsicana, for Appellee/Respondent.
Paul E. Fulbright, Corsicana, for ad litem.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
This case concerns a petition for writ of mandamus. John K. Chu petitions this Court to issue a writ of mandamus to Respondent, the Hon. John H. Jackson, Judge of the 13th District Court, Navarro County, Texas, ordering him to vacate certain orders. The underlying cause concerns a petition to modify custody of John's four children by his former wife, Kimberly.1 One of these orders denied John's motion to disqualify the children's attorney ad litem, Paul Fulbright, and the other awarded interim attorney's fees to Fulbright. John filed a motion for temporary relief in this Court. See Tex.R.App. P. 52.10. We stayed the ad litem fees order and requested responses to the petition. Kimberly and the children have filed separate responses. We will deny the petition.
The writ of mandamus is "[a] writ issued by a superior court to compel a lower court or government officer to perform mandatory or purely ministerial duties correctly." Black's Law Dictionary 973 (7th ed.1999). "Mandamus is an extraordinary remedy available only in limited circumstances...." In re Crow-Billingsley Air Park, Ltd., 98 S.W.3d 178, 179 (Tex.2003) (per curiam). "Mandamus issues only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy by law." In re State Bar of Tex., 113 S.W.3d 730, 733 (Tex.2003) ). "The burden of establishing an abuse of discretion and an inadequate appellate remedy is on" the relator, "and this burden is a heavy one." See In re CSX Corp., 124 S.W.3d 149, 151 (Tex.2003) (per curiam). "A clear abuse of discretion occurs when an action is `so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.'" Id. ). "Extraordinary circumstances do not exist when a trial court's ruling is merely incidental to the trial process and does not permanently deprive a party of substantial rights." In re Masonite Corp., 997 S.W.2d 194, 200 (Tex.1999) . In re Nitla S.A. de C.V., 92 S.W.3d 419, 422 (Tex.2002) (per curiam) (internal citation omitted).
This case concerns the statutes on attorneys ad litem. The appointment of attorneys ad litem in suits affecting the parent-child relationship is governed by Texas Family Code Chapter 107, Subchapters A and B. See Tex. Fam.Code Ann. §§ 107.001-107.023 (Vernon Supp.2004). The Seventy-Eighth Legislature substantially amended Chapter 107. See Act of May 27, 2003, 78th Leg., R.S., ch. 262, 2003 Tex. Gen. Laws 1173. Those changes, however, affect only suits filed on or after the effective date of the Act, September 1, 2003. Id. §§ 2-3, 2003 Tex. Gen. Laws at 1183. Prior law is carried forward for suits filed before that date. Id. § 2. The instant cause, in which the petition to modify was filed in March, 2003, is governed by prior law, which we cite.
John's main argument is that we should issue the writ to direct Respondent to vacate his order denying John's motion to disqualify Fulbright. Although John's motion in the trial court and the parties' briefing here speak in terms of attorney disqualification, it appears from the case to which they refer that the issue is mostly one of objection to and removal of an attorney ad litem under former Texas Family Code Section 107.006(c).2 See Gonzalez v. Gonzalez, 26 S.W.3d 657 (Tex. App.-San Antonio 2000, no pet.); Act of May 28, 1997, 75th Leg., R.S., ch. 1294, § 4, 1997 Tex. Gen. Laws 4930, 4932, repealed by Act of May 27, 2003, 78th Leg., R.S., ch. 262, § 1, 2003 Tex. Gen. Laws at 1178. We address the issues of disqualification and removal separately.
Moreover, in his petition, John argues grounds of disqualification or removal that he did not argue in the trial court. We do not consider arguments in a petition for writ of mandamus which were not presented to the trial court. See In re Am. Optical Corp., 988 S.W.2d 711, 714 (Tex. 1998) (per curiam).
John argues that Respondent abused his discretion in overruling John's motion to disqualify Fulbright. The only arguable ground of disqualification is that Fulbright may be a witness in the suit. Respondent did not abuse his discretion in denying John's motion to disqualify Fulbright premised on this ground.
Although John raises several grounds for Fulbright's disqualification or removal, most cannot even arguably support disqualification. "Attorney disqualification litigation generally involves considerations of conflict of interest, either between an attorney's duties to different clients or between the attorney's duties to the client and the profession and the public interest." Nina Cortell et al., Disqualification of Lawyers and Judges, in 1 State Bar of Tex. Prof. Dev. Program, Advanced Civil Trial Course I, I-4 (1999). Only one of John's grounds, the attorney-witness rule, codified in Texas Disciplinary Rule of Professional Conduct 3.08, could support disqualification. See Tex. Disciplinary R. Prof'l Conduct 3.08, reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G app. A (Vernon 1998) (Tex. State Bar R. art. X, § 9). The attorney-witness rule falls within this category because of the risk of confusion of the factfinder between the attorney-witness's roles as attorney, in which the attorney advocates persuasively for a client, and as witness, in which the witness testifies from personal knowledge and the factfinder must judge the witness's credibility. See id. cmt. 4; Anderson Producing, Inc. v. Koch Oil Co., 929 S.W.2d 416, 422 (Tex.1996).
John cites Rule 3.08 and ethics opinions relying on predecessors of that rule as a basis for disqualification of Fulbright. See Tex. Disciplinary R. Prof'l Conduct 3.08; Comm. on Prof'l Ethics, State Bar of Tex., Op. 363, 36 Tex. B.J. 372 (1973); Comm. on Interpretation of the Canons of Ethics, State Bar of Tex., Op. 234 (1961), reprinted in 18 Baylor L.Rev. 195, 314 (1966).
As quoted by John, Rule 3.08 provides:
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.
TEX. DISCIPLINARY R. PROF'L CONDUCT 3.08(a).
"Although Rule 3.08 was promulgated as a disciplinary standard, rather than a procedural disqualification standard," the Texas Supreme Court has "recognized that `the rule articulates considerations relevant to a procedural disqualification determination.' "Anderson Producing, 929 S.W.2d at 421 ).
The Texas Supreme Court has held that mandamus will lie to correct the erroneous denial of a motion to disqualify counsel, at least where a conflict of interest involving a former client is concerned. In re EPIC Holdings, Inc., 985 S.W.2d 41, 54 (Tex. 1998) ; Nat'l Med. Enters., Inc. v. Godbey, 924 S.W.2d 123, 126 133 (Tex.1996) . We assume without deciding that mandamus will lie in cases involving the attorney-witness rule. See, e.g., In re Bahn, 13 S.W.3d 865, 872-73 (Tex.App.-Fort Worth 2000, orig. proceeding).
The trial court's denial of an attorney disqualification motion is reviewed on an abuse of discretion standard. Syntek Fin. Corp. v. Metro. Life Ins. Co., 880 S.W.2d 26, 32 (Tex.App.-Dallas), rev'd on other grounds, 881 S.W.2d 319 (Tex.1994). "In considering a motion to disqualify, the trial court must strictly adhere to an exacting standard to discourage a party from using the motion as a dilatory trial tactic" or for other tactical purposes. Nitla, 92 S.W.3d at 422; accord EPIC Holdings, 985 S.W.2d at 58.
"[U]nder Rule 3.08, an attorney is not automatically disqualified" merely because that attorney's opponent intends to call the attorney as a witness. May v. Crofts, 868 S.W.2d 397, 399 (Tex.App.-Texarkana 1993, orig. proceeding). To the contrary, Rule 3.08 "should rarely be the basis for disqualification." Id. The disqualification movant "must present evidence that the testimony of the lawyer is `necessary' and that it goes to an `essential fact' of the nonmovant's case." In re A.M., 974 S.W.2d 857, 864 (Tex.App.-San Antonio 1998, no pet.) (quoting Tex. Disciplinary R. Prof'l Conduct 3.08). "Disqualification is not appropriate under this rule when opposing counsel merely announces his intention to call the attorney as a fact witness; there must be a genuine need for the attorney's testimony that is material to the opponent's client." Id. Moreover, "[e]ven if a lawyer violates a disciplinary rule, the party requesting disqualification must demonstrate that the opposing lawyer's conduct caused actual prejudice that requires disqualification." Nitla, 92 S.W.3d at 422.
John's disqualification argument concerns Fulbright's filing of a motion to suspend the order providing for John's visitation with the children. The terms of the Chus' Wyoming divorce decree provided...
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