Opinion Released September 27, 2016

In this weekly blog, the Law Offices of Brandy Wingate Voss, PLLC will summarize recent decisions from the Thirteenth Court of Appeals and provide links to decisions on the court’s website.

In re Solis Law Firm, No. 13-16-00350-CV (Memorandum Opinion by Justice Benavides; Panel Members: Justices Rodriguez and Perkes)

In this petition for writ of mandamus, the Thirteenth Court reviewed a motion to disqualify an attorney based on the attorney’s role as a witness in the case.

Four individuals—Almedia, Rojo, Moreno, and Avelar—hired Manuel Solis and the Solis Law Firm to represent them in immigration proceedings. Soon thereafter, all four fired Solis and hired Dougherty. In addition to handling their immigration proceedings, Dougherty filed suit on behalf of her clients against the Solis Law Firm for negligence, fraud, breach of fiduciary duty, and deceptive trade practice act violations.

Solis moved to disqualify Dougherty, claiming her representation of the four individuals violated Texas Disciplinary Rule of Professional Conduct 3.08(a) because (1) she represented the plaintiffs in their immigration claims and thus had personal knowledge of the events in controversy; and (2) Dougherty was a witness—having already “testified” via several declarations attached to various motions—and her testimony was essential to her clients’ claims.

The trial court held a hearing on Solis’s motion to disqualify. At the hearing, Dougherty assured the court that she would not testify in the case, and the court confirmed that it would not authorize her to testify. Solis continued to assert his objections to Dougherty’s representation, while also objecting to two exhibits attached to Dougherty’s response to his motion to disqualify. The trial court overruled all of Solis’ objections and allowed Dougherty to continue her representation.

Solis filed a petition for writ of mandamus, claiming that the trial court abused its discretion by failing to disqualify Dougherty, and by overruling Solis’ objections to the relevant exhibits.

Held: The trial court did not err; disqualification was not necessary.

The Thirteenth Court first noted the standard for mandamus relief, reiterating that review was only available if the trial court abused its discretion and there was no adequate remedy by appeal. However, the disqualification of counsel cannot be adequately remedied by appeal. Thus, the Thirteenth Court proceeded to analyze the trial court’s ruling on Solis’ motion to disqualify.

Solis pointed to Rule 3.08(a) of the Texas Disciplinary Rules of Professional Conduct as the grounds for disqualification of Dougherty. The court acknowledged that the Rules of Professional Conduct are viewed as guidelines regarding disqualification of an attorney. Rule 3.08 in particular, prohibits an attorney from accepting or continuing representation in a proceeding if the attorney “knows or believes . . . [she] is or may be a witness necessary to establish an essential fact on behalf of the lawyer’s client,” unless one of five exceptions applies. Solis bore the burden of proof to establish the need for disqualification.

The Thirteenth Court of Appeals highlighted several areas in which Solis failed to carry its burden of proof. First, Solis alleged that Dougherty’s testimony was necessary, but not that it was necessary to an essential element of the claim. Furthermore, Solis failed to prove that Dougherty’s testimony would actually cause Solis prejudice.

Although the court found Dougherty’s verifications troubling—particularly her verification in support of a motion for summary judgment—the relevant pleadings had since been amended to remove and replace Dougherty’s statements. Furthermore, at the hearing on disqualification, Dougherty assured the trial court that she would not be testifying in the case. Thus, disqualification was not necessary, and the Solis Law Firm’s challenge was overruled.

Regarding Solis’ second issue—the allegedly erroneous exclusion of two exhibits—the exhibits were not clearly relevant to the disqualification, and the trial court’s order was correct regardless.

Thus, the petition for writ of mandamus was denied.

Read the Full Opinion Here