In re VSDH Vaquero
Venture, Ltd.
Dallas Court of Appeals, No. 05-14-00958-CV (August 28, 2014)
Justices FitzGerald, Francis (Opinion), and Myers
Two weeks before trial, Defendants Kenneth and Betsy Gross filed an amended witness list, identifying Plaintiff’s counsel, Evan Shaw, as a potential witness in the case. They later filed a motion to disqualify Shaw, relying on Rule 3.08 of the Texas Disciplinary Rules of Professional Conduct. With certain exceptions, Rule 3.08 prohibits a lawyer from continuing to act “as an advocate before a tribunal in a . . . 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.” At the disqualification hearing, counsel for the Grosses said he believed there was “more than a 50 percent chance” he would call Shaw as a witness, but he did not identify any particular testimony he needed to elicit from Shaw. The trial court granted the motion to disqualify Shaw as trial counsel, and Shaw sought mandamus in the Dallas Court of Appeals. The appellate court directed the trial court to vacate its disqualification order, holding that the Grosses had not met their burden to prove that “the testimony of the lawyer is necessary, that it goes to an ‘essential fact,’ and that the party will be prejudiced if the opposing lawyer is permitted to serve in dual roles.” It noted that an “attorney’s testimony is not considered necessary if there is no unqualified, positive intent to call the attorney as a witness.”
Dallas Court of Appeals, No. 05-14-00958-CV (August 28, 2014)
Justices FitzGerald, Francis (Opinion), and Myers
