Bert Wheeler's, Inc. v. Ruffino
666 S.W.2d 510
Tex. App.
1983
Check Treatment

*2 $111,600 Hoppess formed Mr. that the of- WARREN, Before DOYLE and DUG- that T.M.P.A. fer had been withdrawn and GAN, JJ. $81,000 willing pay only was easement. OPINION September wrote a On WARREN, Justice. representative of T.M.P.A. and informed accept him seeks that relator would Relator a writ of mandamus to Ruffino, representative replied to Mr. compel Carolyn offer. The Honorable Hoppess by original letter that the offer Judge County Court of of Bra- Law available, again an offer County, was not and made zos to reinstate Karl as $81,000.00. in a condemnation suit. (T.M.P. 24, 1979, Municipal Agency Texas Power T.M.P.A. filed On October A.), interest, condemnation, party municipal petition July, the real is a corporation political partial summary and a filed a motion for subdivision right judgment possessing judgment, seeking the State of the court’s Wheeler, Inc., case, except damages, eminent domain. Bert that all issues property proved owner of a tract of in Brazos were as a matter of law. response Attached the its to T.M.P. relator ever before authorized him to ac- summary partial motion for it, A.’s cept placed posi- T.M.P.A. would in a attorney, a sworn affidavit of relator’s might tion it him in which have to call history reciting Karl of his poten- faith issue and negotiations with T.M.P.A. The give tially testimony prejudicial to his attempted to T.M.P.A.’s claim of .refute (Hoppess’) own client. The refused court *3 good negotiations faith and intimated an Mr. Hoppess. to reinstate of In by abuse discretion T.M.P.A. answer question Our first is whether we have interrogatories, Hoppess Mr. to T.M.P.A.’s power the to issue a writ of mandamus to was listed T.M.P.A. witness who as a judge Hop- order the trial to Mr. reinstate appear would at of trial on behalf relator. pess. 15, 1983, April granted On the a court 19, 1983, jurisdiction Since June our over partial summary judgment decreeing that subject causes to mandamus been en- has all in issues the case resolved as a were larged virtually such that it is the same as except following: matter of law the that, Supreme Court Tex. of Texas. (1) (appellee) whether or not Plaintiff ne- § (Vernon Rev.Civ.Stat.Ann. art. faith; gotiated good 1983). Therefore, Supp. per- former cases (2) (appellee) whether or not Plaintiff taining jurisdiction to the mandamus determining abused its discretion in the Supreme applicable now to condemned; and, interest land to be jurisdiction. (3) the amount of damages. April On T.M.P.A. filed motion to writ A of mandamus issue in a disqualify Hoppess attorney Mr. as the proper case to correct a abuse of clear relator, alleging by remaining as rela- discretion, particularly remedy by when the attorney tor’s he would in violation of way appeal inadequate. v. Soli West Bar Disciplinary the State of Texas Rule to, (Tex.1978); 563 S.W.2d Crane v. DR5-102, Hoppess since to be a was wit- Tunks, (1959). 160 Tex. 328 S.W.2d 434 in the case. ness a hearing, After at which Mr. judge’s Relator contends re that a stipulated that he intended to lawyer fusal reinstate a to act as to so as trial, granted witness at the the rela- court attorney the of record constitutes clear motion disqualify. tor’s to discretion rule disciplinary abuse of when a Thereafter, being Mr. Bar of not Hoppess filed motion the State Texas is attorney. himself At transgressed. agree reinstate as the We this conten with hearing motion, tion, on that agree applica we cannot that it is but informed the court that client did not his ble situation with we are to the which him testify, want if he were confronted. reinstated he would neither nor of- disqualifying Hoppess appar- The order jury any fer to court or to evidence ently alleged based on violations relating personal knowledge. to his He Disciplinary Rule 5-101 and 5-102 Eth- previous stipulation withdrew his also con- 5-10, ical Considerations 5-9 and Tex. State cerning appearance his as a witness. At (Vernon 1973). Bar Rules Vance, hearing, Mr. Disciplinary Rule 5-102 T.M.P.A., op- told the court that he still not, lawyer excep- shall unless one of four reinstate, posed the motion to because Mr. applies, “accept employment tions con- Hoppess was still a material as to templated pending litigation or if he knows negotiated T.M.P.A. with whether relator in his lawyer or it is that he or a obvious faith. He further informed the called ought firm to be as a witness Hoppess’s court since Mr. sworn sum- client, his he must from mary affidavit that T.M. behalf of withdraw showed offer employment.” P.A.’s was withdrawn not to serve or deciding whether 4. Disciplinary Rule exceptions to The four counsel, to serve as accept 5-101(B), permit the which or fi- personal “the consider should employment include: continue of the client sacrifice nancial solely to testimony relate If the will 1. of em- from his refusal may result matter. an uncontested ..., materiality of his ployment solely to testimony will relate 2. If the testimony, and the effectiveness is no formality and there a matter per- representation in view of his his evi- reason to believe that substantial sonal involvement.” opposition offered in dence will be refusal be clear that It also “should testimony. impose an unrea- will or withdrawal solely relate If the will the client be- hardship upon sonable legal services nature and value of lawyer accepts or continues fore the lawyer or in the case rendered employment.” firm to the client. *4 resolved in Finally, doubts should be any matter if refusal 4. As against testifying and favor of his hardship on the a substantial work serving as his counsel. the distinctive value client because of lawyer or his firm as counsel reasons have been advanced of the Several lawyer from testi- particular prohibiting case. rule the Lewis, J., Dilem- See, “The Ethical fying. 5-102(B) a applies Rule after Disciplinary Fact or Fan- Testifying Advocate: ma of employment in con- lawyer has undertaken (1981). The attor- cy?” 19 Hous.L.Rev. 75 later templated pending litigation, and or for interest ney may impeachable more be obvious, learns, that he or a or it becomes and, therefore, effective witness. a less as a ought in his firm to be called lawyer handicap the may His role as an advocate client. than on behalf of his witness other challenging the credi- opposing counsel lawyer “may a case the continue such advocate, may or it bility testifying apparent until it is that representation in the un- place testifying advocate testimony may prejudicial is or be to his his position arguing seemly ineffective and client.” credibility. Finally, the roles his own 5-10 contains Ethical Consideration inconsistent, are be- advocate and witness lawyer-witness to con- guidelines is to function of an advocate cause the determining he should whether sider cause, and that of a his client’s advance serve as counsel: objectively. facts witness is to state gov- considerations 1. The same basic ern the initial decision to refuse did both that the trial court We conclude accept employment as counsel and deciding to dis its discretion not abuse decision, problem sur- hearing where the T.M.P. after qualify later, or to contin- disqualify. stipulation faces to withdraw His A.’s motion to counsel. ue as as a witness be that he would client, showing that without a half of his attorney also need not withdraw 2. The one of testimony did not fall within this he will unlikely if it is as counsel 5-101(B), is an made in DR. exceptions four his called as a witness because be contemplated violation admission of “merely cumula- testimony would be DR. 5-102. tive ...” duty questions the Further, party Neither attorney may serve as Rules, and disciplinary probably court to enforce though even he will counsel is such authority stating that there in there is on a contested issue a witness be Edwards, duty. Bar Texas v. in which a State “exceptional situation” (Tex.App.-Houston [1st serve would be man- 646 S.W.2d his refusal so n.r.e.). 1982, writ ref’d ifestly unfair to the client. Dist.] agreement an abuse of discretion not demonstrated question The is whether is calling by the record. by Hoppess forego and witness, any potential cures The writ is denied. possibility of a viola- violation or makes the unlikely that it should not tion so remote or FOR ON MOTION REHEARING potential considered a violation? be WARREN, Justice. 5-102(A) requires Disciplinary Rule lawyer representation from in a withdraw First, compelled expressly we feel he trial if he learns or it is obvious that deny allegations by opin- relator’s lawyer ought firm to be called as a attorney, ion we have branded its Karl of his client unless the witness behalf practitioner Hoppess, an unethical DR. testimony excepted under 5- contrary, castigated we have him. To 101(B)(1) (4). through sympathetic we are with relator and coun- inconvenience, hardship, sel because 5-102(B) Disciplinary Rule possible disadvantage caused when a learns or it is obvious situation. may he called as a other than on client, may behalf of his he continue the opinion Our held that: representation apparent until it is that his (1) duty the trial court has to enforce prejudicial is or to his rules; disciplinary client. (2) mandamus will lie to correct a clear abuse of discretion the trial court *5 considering the motion to re When rules; in its enforcement of those instate, judge was aware the infor and, Hoppess’s summary mation contained in (3) the trial court did not abuse its dis- judgment affidavit. She was also aware of refusing cretion to reinstate rela- may it opposing counsel’s contentions that attorney attorney tor’s as the call and that the testi record. mony posi relator’s prejudicial would be do not hold that it is a violation of the We regarding “good tion faith”. Good faith for an Disciplinary Rules who has case, in the would be a material issue be represented a client in a condemnation case jury if that T.M.P.A. cause decided negotiation stage represent faith, negotiate failed to then the trial, though “good client also at even jurisdiction entire court would lose over the faith” is in issue. cause. attorney voluntarily In this case the in- recognize We that the denial of relator’s jected the ease as a himself into him right Hoppess represent to have at issue, which is a violation of a material likely hardship to trial will create some Disciplinary Rule 5-102. any remedy by appeal apply After the trial court declined to an may inadequate. believe that this is We exception DR 5-102 and removed Mr. in most cases where a is forced true agreed his client Hoppess, and after spending years after several to withdraw witness, Hoppess would not as Also, preparing a case for trial. there is a a motion to reinstate filed danger being clear of such a tactic used that it call T.M.P.A. then declared disqualify the skill- opposing an counsel to a witness and resisted the mo- as ful, stubborn, perpetual adver- tion to reinstate. Therefore, sary. appellate courts must carefully judge’s duty look to the circumstances of each to determine It was the trial facts, whether, exception deciding case in whether mandamus should under the un- 5-101(B)(4), or DR 5-102 would prevent issue to an abuse of discretion der DR allowing Hoppess to continue apply, that in this thus the trial court. We hold case ap- refused to record. She as exceptions.

ply any of decision, trial court reaching its con- had to consider the facts

necessarily apply record and the law to

tained in the

those We not substitute facts.

opinion judge unless for that trial

there an abuse of or unless discretion judge erroneously applied the law trial

to the facts. rehearing

The motion for is overruled. INC.,

ALLRIGHT, Allright Auto d/b/a

Parks, Inc., Appellant,

v. BURGARD,

Stephen Appellee. K.

No. A14-83-097-CV. Appeals (14th Dist.)

Houston

Dec.

Rehearing Denied Jan.