In Re: Joseph M. Martel, Sr.--Appeal from 321st District Court of Smith County

NO. 12-06-00397-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN RE: JOSEPH M. MARTEL, SR., ORIGINAL PROCEEDING

RELATOR

MEMORANDUM OPINION

Joseph M. Martel, Sr. seeks a writ of mandamus directing Respondent, the Honorable Carole W. Clark, Judge of the 321st Judicial District Court, Smith County, Texas, to vacate her order denying Joseph s motion to disqualify Samuel M. George as attorney for Jane Martel, the real party in interest. For the reasons set forth below, we deny the petition.

Background

Joseph filed a petition in the trial court seeking to modify the conservatorship and terms of possession of Austin Thomas Martel, one of the children born to Joseph and Jane during their marriage. Approximately two months later, Jane took Austin to George s office where George met with Austin. Jane was not present at the meeting, but was in the building.

On September 27, 2006, at a hearing on temporary orders, several witnesses testified about the meeting between Austin and George. Jane testified that she took Austin to meet with George so that George could explain his rights to him. She explained that Austin had been told that Joseph would put him on the stand, that he could be represented by his own attorney, that he could have his own legal advice, and that he could do as he pleased and get on the stand. She said Austin had also been told that he could be represented by George and that she would have to pay for it. According to Jane, Austin said Joseph told him these things. She also testified that she told Austin she was taking him to George s office because George could answer his questions, and Austin replied, That s fine. Jane testified that George and Austin met for approximately ten minutes and that she noticed no change in Austin s demeanor after the meeting. She further stated that Austin went to sleep in the car immediately after the meeting.

Daphne Martel, Joseph s present wife, described her conversation with Austin about his meeting with George. According to Daphne, Austin said George had frightened him, threatened him, made him read out of a large book, and stated several times using profane language that he hated Joseph. Joseph testified that Austin feels intimidated as a witness as a result of his meeting with George. George testified that he met with Austin and read to him from the Texas Family Code. He strongly denied using foul language in the meeting and said he told Austin he felt sorry for him. He also denied giving Austin legal advice, but stated that he told him what his rights were. Thereafter, Joseph filed a motion to disqualify George alleging as grounds that George had become a witness in the case and, alternatively, that by their meeting, George established an attorney-client relationship with Austin, who is adverse to Jane in the case.

After a hearing, the trial court denied Joseph s motion to disqualify George. Joseph then filed a petition for writ of mandamus in this court. He also filed a motion for emergency relief, which we denied.

Availability of Mandamus

A writ of mandamus will issue only if the trial court has committed a clear abuse of discretion and the relator has no adequate remedy by appeal. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005). The trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if it clearly fails to correctly analyze or apply the law. Id. The denial of a motion to disqualify counsel is a proper subject for mandamus review. See Nat l Med. Enters., Inc. v. Godbey, 924 S.W.2d 123, 128 (Tex. 1996).

Disqualification of Counsel

Disqualification of counsel is a severe remedy. In re Nitla S.A. de C.V., 92 S.W.3d 419, 422 (Tex. 2002). It can result in immediate and palpable harm, disrupt trial court proceedings, and deprive a party of the right to have counsel of choice. Id. Accordingly, in ruling on a motion to disqualify, the trial court must adhere to an exacting standard to discourage use of disqualification as a dilatory trial tactic. In re Meador, 968 S.W.2d 346, 350 (Tex. 1998). When deciding disqualification issues, Texas courts have often looked to the Texas Disciplinary Rules of Professional Conduct. See, e.g., id.; In re T.E.D., No. 12-06-00143-CV, 2006 WL 2106971, at *2 (Tex. App. Tyler July 31, 2006, orig. proceeding) (mem. op.). The disciplinary rules do not determine whether counsel is disqualified, but provide guidelines and suggest the relevant considerations. In re EPIC Holdings, Inc., 985 S.W.2d 41, 48 (Tex. 1998).

In moving to disqualify a party s counsel of choice, the movant bears the burden of establishing that disqualification is justified. See id. at 60. Mere allegations of unethical conduct or evidence showing a remote possibility of a violation of the disciplinary rules will not suffice to merit disqualification. In re Cerberus, 164 S.W.3d 382.

Abuse of Discretion

Joseph first alleges that George is disqualified because he has become a witness in the case. As support for this conclusion, Joseph cites Texas Disciplinary Rule of Professional Conduct Rule 3.08, subsections (a) and (b).

Lawyer as Witness

Rule 3.08, subsection (a) prohibits a lawyer from continuing employment as an advocate 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. 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). Joseph alleges that the factual dispute about what occurred in George s meeting with Austin will be a subject at trial. However, he does not identify any essential fact that must be established on Jane s behalf for which George s testimony is necessary. Moreover, even if he had shown necessity as required by Rule 3.08(a), he must also demonstrate actual prejudice to himself resulting from George s service as both lawyer and witness. See In re Sanders, 153 S.W.3d 54, 57 (Tex. 2004); Ayres v. Canales, 790 S.W.2d 554, 558 (Tex. 1990). Joseph has failed to show any such prejudice.1 Therefore, he has not shown that George is disqualified under Rule 3.08(a).

Subsection (b) of Rule 3.08 prohibits a lawyer from continuing as an advocate in a pending adjudicatory proceeding if the lawyer believes the lawyer will be compelled to furnish testimony that will be substantially adverse to the lawyer s client, unless the client consents after full disclosure. Tex. Disciplinary R. Prof l Conduct 3.08(b), reprinted in Tex. Gov t Code Ann., tit. 2, subtit. G app. A (Vernon 2005) (Tex. State Bar R. art. X, 9). Jane opposed Joseph s disqualification motion in the trial court and opposes Joseph s attempt in this proceeding to require George s disqualification. Nothing in the record suggests that Jane has not consented to George s continued representation after full disclosure. Because Joseph has not shown the absence of Jane s informed consent to George s continued representation, he has not established that George is disqualified under Rule 3.08(b).

Conflict of Interest

Joseph further argues that George should be disqualified because he has a conflict of interest. See Tex. Disciplinary R. Prof l Conduct 1.06, reprinted in Tex. Gov t Code Ann., tit. 2, subtit. G app. A (Vernon 2005) (Tex. State Bar R. art. X, 9).2 This argument is based upon the premise that, as a result of his meeting with Austin, George established an attorney-client relationship with Austin. Joseph reasons that because both Austin and Jane are George s clients, and Austin is adverse to Jane, George cannot continue to represent Jane.

The attorney-client relationship is a contractual relationship whereby an attorney agrees to render professional services for a client. Honeycutt v. Billingsley, 992 S.W.2d 570, 581 (Tex. App. Houston [1st Dist.] 1999, pet. denied). The relationship may be expressly created by contract, or it may be implied from the actions of the parties. Id. It is necessary that the parties either explicitly or implicitly manifest an intention to create an attorney-client relationship. Hill v. Bartlette, 181 S.W.3d 541, 547 (Tex. App. Texarkana 2005, no pet.). Joseph does not argue that George and Austin expressly created an attorney-client relationship. Instead, he argues that such a relationship must be implied because George explained Austin s rights to him and read to him from the Family Code. However, Joseph does not cite any case or other authority showing that these acts, without more, are sufficient to create an attorney-client relationship, nor have we been able to locate any such authority. More importantly, Austin is 13 years old and does not have the legal capacity to employ an attorney. See Byrd v. Woodruff, 891 S.W.2d 689, 704 (Tex. App. Dallas 1994, writ dism d by agr.) (minor is without legal capacity to employ an attorney); see also Tex. Civ. Prac. & Rem. Code Ann. 129.001 (Vernon 2005) (age of majority in Texas is 18 years). Joseph does not explain by what authority the trial court could have implied the creation of a relationship that Austin could not have expressly created by contract. Therefore, he has not shown that George is disqualified under Rule 1.06.

Disposition

Joseph did not meet his burden to establish that George should have been disqualified. Therefore, we conclude that the trial court did not abuse its discretion in denying Joseph s motion to disqualify George. Accordingly, the petition for writ of mandamus is denied. On January 4, 2007, Joseph filed a second motion for emergency relief. This opinion renders the motion moot, and we therefore overrule it.

JAMES T. WORTHEN

Chief Justice

Opinion delivered January 8, 2007.

Panel consisted of Worthen, C.J. and Hoyle, J.

Griffith, J., not participating.

(PUBLISH)

1 In fact, the trial court could have concluded that Joseph expects to benefit from George s testimony.

2 Rule 1.06 provides, in pertinent part, as follows:

(a) A lawyer shall not represent opposing parties to the same litigation.

(b) In other situations and except to the extent permitted by paragraph (c), a lawyer shall not represent a person if the representation of that person:

(1) involves a substantially related matter in which that person s interests are materially and directly adverse to the interests of another client of the lawyer or the lawyer s firm; or

(2) reasonably appears to be or become adversely limited by the lawyer s or law firm s responsibilities to another client or to a third person or by the lawyer s or law firm s own interests.

Tex. Disciplinary R. Prof l Conduct 1.06 (a), (b), reprinted in Tex. Gov t Code Ann., tit. 2, subtit. G app. A (Vernon 2005) (Tex. State Bar R. art. X, 9).