Side-Switching Attorney Leads to Disqualification and DWOP

After an automobile collision, the Gomez family sued Sol Ly for negligence. Ly was represented by the Herald law firm, which also employed attorney Tim Brandenburg. But while the suit was pending, Brandenburg left Herald to join the law firm of Domingo Garcia, which represented the plaintiffs. Based on the defendant’s oral objection, the trial court granted a mistrial and ordered the defendant to file a motion to disqualify, which was subsequently granted. The plaintiffs failed to obtain substitute counsel, and the case was dismissed for want of prosecution. The Court of Appeals affirmed. The plaintiffs’ pro se motion to reinstate the case following the dismissal challenged only the disqualification, and not the plaintiffs’ failure to appear at the new trial setting. Without a showing that the failure to appear was adequately justified, the Court of Appeals could not conclude that the trial court had abused its discretion in denying the motion to reinstate.

Gomez. v. Sol, No. 05-14-00893-CV

Defense Counsel Not Disqualified Because His Testimony Not “Essential”

In this memorandum opinion, the Court directed the trial court to vacate its order disqualifying defense counsel.  Although the plaintiff argued that the counsel for defendant should be disqualified because he was a potential witness, the Court of Appeals found no evidence establishing what was “essential” about his testimony or how the plaintiff would be prejudice if he were not permitted to testify.

In re VSDH Vaquero Venture, Ltd.

Theft Liability and Disqualification

A pair of attorneys sued each other for breach of contract and breach of fiduciary duty, with the plaintiff also asserting a claim for violation of the Texas Theft Liability Act. The jury found both attorneys at fault and awarded no damages. The defendant moved for an award of attorney fees as the prevailing party on the Theft Liability Act claim, but the trial court denied the motion. The Court of Appeals affirmed, holding that the defendant’s failure to plead a claim for recovery of attorney fees under the Act precluded him from recovering his costs of defense. Pleading for recovery of fees under the breach of contract counterclaim and in special exceptions was not sufficient to invoke a claim for recovery under the Theft Liability Act, even though that statute provides for a mandatory award of attorney fees to the prevailing party.

The Court also affirmed on the plaintiff’s cross-appeal, which challenged the trial court’s disqualification of him from personally conducting the examination of his computer forensics expert. Under Disciplinary Rule 3.08, an attorney is generally prohibited from appearing as both an advocate and a witness. However, the defendant failed to meet his burden of showing he would have been prejudiced by having his opposing party conduct the examination, so the trial court did abuse its discretion by ordering the disqualification. Nevertheless, the error was deemed harmless because the plaintiff failed to advise the trial court that his attorney was not prepared to question the witness and he did not point to any specific testimony that the attorney had failed to elicit from the expert. The Court also affirmed the trial court’s rulings on a pair of evidentiary issues and on special exceptions to the Theft Liability Act claim.

Shaw v. Lemon, No. 05-12-00903-CV

Disqualification Standards — UPDATED

The Dallas Court of Appeals denied a mandamus petition seeking to set aside the trial court’s disqualification of counsel for the plaintiff in a commercial dispute. In re RSR Corp., 405 S.W.3d 265 (Tex. App.–Dallas 2013, orig. proceeding).  The Texas Supreme Court later took the opposite review and remanded for further proceedings.  In re: RSR Corp., No. 13-0499 (Tex. Dec. 4, 2015). The opinions involve the interplay of the different disqualification standards provided by In re American Home Products Corp., 985 S.W.2d 68 (Tex. 1998), and In re Meador, 968 S.W.2d 346 (Tex. 1998). We will present this case without the usual commentary because our firm represents the real party in interest, but it is a useful read or anyone wondering about what lawyers can and cannot do with a former employee of an opposing party.