*1 filing of the statement of facts. motion for no transcript
I reviewed the and find have agree accordingly I
fundamental error. AFFIRMED.
the case should be WARRILOW, Designated
Cyril James
Representative of Underwriters Certain London, Lloyd’s, Appellant, NORRELL, al., Appellees.
Dink et C.
No. 13-88-437-CV. Texas, Appeals
Court of
Corpus Christi.
Nov.
Rehearing April Overruled *2 tragic
This suit out of a accident. arose Norrell On November Carlton friend, shot when Wil- accidentally loaded dropped pistol. liam *3 Norrell, Kerr, buddies,” “hunting three Wolfe, hunting deer in Colorado. went arrival, men from Upon their rented Lee, Richard a local hunter and resident area, drive to four-wheel vehicle hunting from transport to and them deer on day fields. Wolfe shot his five hunt, day the hunt. the last of the On it to the Norrell shot his deer secured vehicle; yet Kerr had not shot a deer. afternoon, men to leave That decided hunting fields and drive back to Lee’s place to rented Accord- return the vehicle. Chasnoff, Rosenblum, Barry A. Rick H. ing Kerr, keep told him his Norrell Akin, Strauss, Stephan Rogers, Gump, B. magnum his gun, pistol, holster and a 41 on Feld, Soules, Hauer Luther H. & Soules & hip driving in case a deer saw while Wallace, Wallace, Antonio, San James P. way, back Lee’s. On vehicle’s Wallace, Austin, & Soules Gaston M. pulled to left rear tire went flat. Norrell Jr., Broyles, Redford, Wray Woolsey, road, vehicle, & the side of the exited the Christi, Corpus appellant. for down, removing kneeled started Kerr, lug jack. nuts. looked for Wolfe Huseman, Powers, Bryan Paul Van Dod- tire, intending in changing to assist son, White, Anthony Pletcher, Huseman, E. fully pistol removed loaded his his Powers, King, Hunt, Pletcher & Allan R. place in the vehicle. Kerr belt Hermansen, Barger, Corpus McKibben & dropped pistol, discharged, his and it shoot- Christi, Kilgarlin, William W. Austin for ing Norrell; Norrell’s the bullet entered appellees. temple through right left and exited NYE, C.J., Before and KENNEDY and seconds, eye. matter of Michael Within a BENAVIDES, JJ. McLain, officer, wildlife field Colorado transported
was on the scene. Norrell was OPINION and, by hospital ambulance to a on Novem- hospital, after died of ber a week KENNEDY, Justice. injuries. Warrilow, representa- a designated C.J. Kerr was of the National Rifle a member of certain insurance tive underwriters such, (“NRA”), and as cov- Association was (hereinafter Lloyd’s of London referred to insurance, policy ered under a master “Warrilow”), judgment appeals from a policy the “Peаcemaker” $10,963,066.53 awarded heirs by syndi- the C.J. underwritten Warrilow Norrell, damages appellees, for re- Carlton cate, February 2,1984, appellant. On War- sulting alleged from Warrilow’s breach of denying coverage sent rilow a letter insured, good dealing faith and fair to its separate being the first of three appeals Kerr. Warrilow further William denials. $8,080.48 attorney’s for from the award allegedly by appellee, incurred William
fees policy provided The “Peacemaker” cover- error, By twenty-five points ap- Kerr. age for: pellant complains Warrilow trial (a) bodily injury, or error, judgment. Having found court’s (b) damage caused an occur- judgment property trial court and reverse of the rising out use trial. rence and of the remand this cause for a new [sic] the Individual Insured preventing firing. Member of fire- an accidental Once arms, trapping bows and arrows or again, attorney King represented Allan equipment, only engaged in 17, 1986, Kerr, but while following Kerr. On June following activities: counsel, the advice of consented to the en-
(i) try against Hunting trapping public agreed judgment or or of an him and private $2,900,000. land. in favor of the Norrells On 30, 1986, King negotiated June Allan with excluded: Norrells, parties and the entered into (k) Bodily Injury Property Damage “Equitable Assignment and Covenant arising out ownership, mainte- (hereinafter Not to Execute” “assign- nance, operations, use, loading or un- *4 ment”), whereby agreed the Norrells that loading of: $2,900,000 judgment execution of the (ii) Any ... automobiles. taken, would not be in return for Kerr’s Warrilow, receiving report after from a against of claims and causes action both adjuster, licensed insurance Flem- James the NRA and The Norrells Warrilow. ob- ing, denied coverage on the that the basis prosecute right any to tained the causes of accident did not occur while Kerr en- was only jointly action in the name of or in Kerr gaged in hunting, alternatively, or that it the name of Kerr the Norrells. and was excluded it arose because out of the that assignment record reflects the recites loading maintenance or of an automobile. coverage up $1,000,000 to of under the 17, 1984, April brought On the Norrells “Peacemaker” From the doc- Sturm, against Ruger suit Company, & the us, to uments before there is evidence show pistol, claiming manufacturer of Kerr’s the that, place, time the assignment at the took designed company danger- and marketed a parties erroneously thought both the gun ously discharges flawed that when policy $700,- either “Peacemaker” limit was Sturm, dropped. Ruger thereafter made $1,000,000, reality, in the or while limit defendant, third-party seeking Kerr a con- $100,000.1 was from tribution him. Foremost Insurance appeal arises the Norrells’ Company, the This from sub- issuer of home- Kerr’s NRA, sequent Warrilow, policy, against suit the owner’s found under their policy jury, and and to to the King hired Allan Kerr.2 Prior submission Kerr. represent The suit was the Norrells settled. The NRA settled with the $50,000 Foremost limits of were ten- plaintiffs. jury that answered Sturm, Ruger dered to on behalf of Kerr as Kerr’s loss was covered and not excluded $1,500,000 contribution be- settlement policy, under the “Peacemaker” that Warri- Sturm, Ruger tween and the Norrells. duty good of intentionally low breached its reflects, part generally, record that of this faith dealing by denying and fair Kerr’s $50,000 paid was Allan in satisfac- claim, grossly negli- that Warrilow was his attorney’s tion of fees. $2,900,000 gent, and that the amount of in the agreed judgment was reasonable. The 15, 1985, November On Norrells filed jury in damages found actual to Kerr against directly. The suit Kerr evidence of $3,000,000 ($2,900,000in amount of finan- negligence part on Kerr’s was substantial. $100,000 in mental damages cial an- accident, knowingly Prior to the he failed guish $7,500,000 punitive in damages), program a free of- advantage to take of Sturm, for damages, attorney’s fees Allan by Ruger to correct fered the defect Moreover, King, counsel. The trial court ren- pistol. in the he failed use a Kerr’s safety practice against keeping empty judgment dered Warrilow favor basic hammer, respective pistol’s thus and Kerr in the chamber the Norrells reviewing possibility plaintiff. fact that "Cove- as a After 1. This raises the Kerr record, ground properly nant Not to is voidable on the Execute" clear entire it is that Kerr was trial, of mutual mistake. placed plaintiff during as a and this Court plaintiffs, as ac- will refer to Kerr one of the Although Kerr named was a defendant cordingly. suit, rеaligned parties, the trial treat- court solely to $8,080.48. (3) testimony will relate $10,963,066.53 If the amounts legal services Warrilow, value of appellant, appeals the nature and the sole lawyer case or rendered in the judgment. firm client. error, point By twenty-first its Warri- matter, if refusal would (4) any As to the trial court erred low contends hardship on the work substantial disqualify attorney, when failed to Kerr’s of the distinctive value client because King. agree. filed a Allan We Warrilow his firm as counsel in lawyer disqualify counsel which it motion particular ease. grounds separate disquali- two asserted (1) King: he a material fact Texas, fication Governing Rules Supreme Court case, desig- he was (Vernon Texas, X, witness Bar of Art. the State § plaintiffs nated witness 1988). grounds in the case. These were reassert- State Bar governing rules trial, during at which time Warrilow ed legal the same force Texas have The motion to dis- moved for a mistrial. they re upon the matters to which effect motion for mistrial were qualify the Texas Rules of Civil Procedure late as by the trial court. overruled *5 they to upon the matters which relate. have 5-102(A) provides: Disciplinary Rule Cochran, 635, v. S.W.2d Cochran If, undertaking employment in con- 1960, after (Tex.Civ.App. writ ref’d — Houston lawyer a templated pending litigation, or Furthermore, n.r.e.). Disciplinary lawyer a or is obvious that he or learns it Rules, considerations, ethical are unlike the ought in his firm to be called as a wit- mandatory in estab character because client, ness on his he shall lish the minimum level of conduct below of behalf of the trial withdraw from conduct lawyer fall. which no can United Pacific firm, any, his if and shall continue Zardenetta, 661 S.W.2d Insurance Co. trial, except representation in the that he 1983) (Tex.App. Antonio — San representation he may continue the (orig. proceeding). We must decide wheth lawyer testify his in the may or a in firm by er trial abused its discretion court in circumstances enumerated DR 5- (1) refusing disqualification to order 101(B)(1) (4) added).3 through (emphasis King brought to its attorney after was testify called to attention he would be 5-101(B)(l) (4) Disciplinary through Rule witness, (2)failing grant or to as material a provides: attorney King had testified a mistrial after (1) testimony solely If the tо will relate part as witness. an uncontested matter.
(2) testimony solely If relate to a will testimony as Attorney King’s formality there is no matter of material witness. fact reason that substantial evi- to believe King attorney was called to tes- opposition to Because
dence will be offered
Kerr,4
client,
on behalf of his
with-
testimony.
tify
(Kerr’s adversary)
5-102(B)
con
as
behalf Warrilow
DR
states:
5-102(B).
by
templated
See Gilbert McClure
DR
If,
undertaking employment in contem-
after
Burnett,
(Tex.App.
Enterprises v.
Clearly, DR be- Sierra, expert F.Supp. at 1172. designated as an tive.7 cause was testify called on behalf of witness and us in the case before The ultimate issues legal plaintiffs. Unable to locate Texas follow: issue, authority addressing this we turn (1) un- the accident was covered whether authority to a case from a United States i.e., policy, der the “Peacemaker” an attor- District Court Colorado where “hunting”: Kerr was whether witness, ney designated as an surprisingly under similar circumstances as (2) excluded the accident was whether Deposit the case at bar. Federal Insur- i.e., policy, the “Peacemaker” under Resources, Corporation ance v. Sierra the accident arose out of whether Inc., (D.Colo.1987),grant- F.Supp. loading of the automo- maintenance disqualify, a motion to the court held bile; jury and would that the would be confused Warrilow, by denying cover- whether weight attribute too much or too little intentionally age policy, *7 attorney’s important testimony. the Sier- duty good faith and its breached ra, likely F.Supp. jury at 1170. The insured, dealing to its William fair adequately distinguish would be unable to Kerr; roles, among attorney’s multiple the includ- (4) conduct consti- whether Warrilow’s (1) ing expert of: on the ultimate those disregard for the tuted a consciоus issues; (2) legal a critical fact witness insured, Wil- (3) rights and welfare of its good dealing; faith and fair the issue of Kerr; liam attorney responsible upholding for the of the Although at trial and the verdict enumerated sever both the record Texas courts have testifying disqualification "(1)” King’s applicable of a jury al reasons for the attorney, that reason following policy reasons have been the testimony. effective wit was not less exclusively applied where the attor to situations ness; opinion contrary, quite the we are of the (1) ney witness: the testifies as a material fact (2) (4) through reversal of reasons warrant that attorney may and, impeachable for interest more this case. therefore, witness; (2) a less effective handicap may attorney’s as an advocate role Discipli Clearly, rationale behind that is the credibility challenging opposing counsel in 5-102(B)’s requirement that the mov- nary Rule advocate; (3) may place testifying it of the testifying testimony showing that the of the ant make a unseemly and ineffec advocate in testifying attorney's may attorney prejudice arguing credibility; and position his own tive 5-102(B) is Disqualification under DR client. (4) and witness are incon the roles of advocate disqualification DR stringent than more sistent, is to because the function of an advocate 5-102(A) litigant may her call his or because a client’s cause and that of witness advance his tactic, seeking attorney opponent’s as a trial Wheeler’s, objectively. Inc. Bert is to state facts attorney case. Jones v. disqualify from the 510, (Tex.App.— Ruffino, S.W.2d (N.D. F.Supp. City Chicago, 360 n. 3 1983) (orig. proceeding). Houston [1st Dist.] considerations, Ill.1984). appears Applying these it (5) $2,900,000 agreed judg- whether the extremely It would have been difficult jury separate attorney
ment
for the
was reasonable under the circum-
what
stances;
King said as an advocate from what he said
as an
To
these
witness.
illustrate
(6)
money,
any,
what sum of
if
would be
difficulties,
only
need
turn to
his own
appropriate
example
to set an
for the
testifying
jury,
words
when
front
good
public
and to deter the
Honor,
“My response, Your
is that —it’s
alleged wrongs
commission of similar
separate my response
difficult to
as a law
of Warrilow.
yer
my
here on behalf of Mr.
testified,
Attorney King
upon
based
testimony,
they’re
because I think
one and
experience as a hunter and a
in-
former
plaintiffs’
the same.” When
counsel
adjuster,
surance claims
as follows:
passed
witness, attorney King
him as a
(1)
my opinion
“It
at the time the
stated,
stand,
again
“I
from the witness
occurred,
incidents
Mr. Kerr was in the
any questions
myself,
don’t have
Your
* * *
hunting.
act of
That there was
Finally, during
Honor.”
cross-examination
question
without
under the when defense counsel moved to admit a
policy....”
document,
Peacemaker
stated,
attorney King
from the
stand,
objection.”
witness
“I
no
have
Com
(2)
my opinion
“It is
that the incident did
pounding
problem jury
confusion is
not arise out of the maintenance of the
* * *
attorney King
the fact
participated
that
Toyota
my
Landcruiser.
It is
actively throughout
examining
the trial:
opinion that the accident did not arise
witnesses,
court,
addressing
argu
out of the automobile at all.”
Gill,
ing
jury.
Callen v.
7 N.J.
Cf.
response
following question
to the
(1951) (where
81 A.2d
counsel,
by plaintiffs’
“Let me
you
ask
attorney
participаte actively
did not
if you
opinion
have an
whether or not
proceedings and did not examine witnesses
Lloyd’s
intentionally re-
[Warrilow]
court).
or address the
fairly
fused to deal with Mr. Kerr
problem
Another
associated with
good
faith in the entire claims han-
”
type
attorney-witness
is the
[sic],
dling
of this matter?
vouching
credibility
for his own
when sum
King responded, “There’s no doubt
ming up
jury;
oppos
it is unfair to
they
that
did.”
City
counsel.
Chicago,
Jones v.
(4) “I
correspondence
think the
(N.D.Ill.1984). Moreover,
F.Supp.
agents
went between the claims
puts
attorney-witness
in the unseem
Lloyd’s [Warrilow], compared to what
ly
arguing
credibility.
position of
his own
telling
adjuster
were
their
the Zardenetta,
agreed judgment]
(7th Cir.1988);
a
Groper,
reasonable F.2d
418 n. 9
stated,
Attorney
amount.”
Likewise, in Insurance Co. v. Farm Mutual Casualty State 610 is Employеrs safety practice knowingly to use a' basic undisputed and that he failed that Kerr failed 12. It is pistol’s keeping empty chamber under the advantage program free offered take Sturm, of a pistol Ruger hammer. to correct the defect in *11 526 maintenance, use, loading operation, Cal.Rptr. ership,
Partridge, 10 Cal.3d
(1973).
case,
unloading
any motor
In that
of
vehicle.
527 Co., Casualty the Farm Fire and pinned person vey a v. between State forward 298, 395, 292, Cal.Rptr. a 770 building). 257 automоbile 48 Cal.3d (citation omitted). 704, 710 P.2d third, eighth Warrilow’s fourth judg- The points of error are overruled. is Coverage policy in property REVERSED, and the trial court ment of is by causa provided reference to commonly trial. cause is REMANDED for a new tion, by “loss ...” certain such as caused OPINION ON MOTION FOR CahRptr. Garvey, forces. enumerated
REHEARING
precisely
P.2d at 710.
It is
at
bring
the
physical forces that
about
these
rehearing, appellant
its motion for
On
Frequently,
cited
Texas
as in the cases
Warrilow contends that established
loss. Id.
Warrilow,
permit
adoption of the
losses occur
by
property
law does not
our
us
Partridge.
significant
concurrent causation doctrine of
one legally
more than
force;
Texas
disagree.
cites three
by
We
Warrilow
poultry
destroyed
physical
house
of its
These
support
argument.1
cases in
in
home rendered
McKillip;
and snow
wind
property
coverage under
cases involve
loss
uninhabitable
an ex
by contamination and
policies
first-party insurance
and are distin-
Auten,
negligence in
terminator’s
guishable
Partridge
from both the facts of
damagеd by
in
building
rain and wind
the
and the facts of
at bar.
case
Texas,
force is
if one
Matchoolian.
excluded,
in
one force is
the
covered and
first-party
Partridge
did
involve
damage
coverage;
property
sured must show
property insurance
involved
force,
liability
coverage.2
third-party
solely by
insurance
was caused
the insured
Partridge never
in
man-
considered what
separate
damage
caused
he must
might apply
ner concurrent
causation
peril from
caused
the insured
first-party property
disputes, and
insurance
peril. McKillip, 469
at
excluded
S.W.2d
holding
its
was not
to that con-
extended
coverage
property
analysis
162. The
text.
the relation
insurance context examines
ship
perils, those that are covered
between
Liability
The Distinction
Between
policy and those that are exclud
under the
Property Insurance
ed,
limit
focusing on the exclusions that
fails to
between
Warrilow
differentiate
Cal.Rptr.
coverage.
Garvey,
loss
coverage
first-party
property loss
under a
P.2d at 710.
policy,
home-
typically
insurance
an all-risk
proper in
Partridge
rationale is not
policy,
liability coverage
owner’s
tort
first-party property insurance context
third-party
policy,
under a
insurance
because,
cases,
insured can
in most
policy
present
case.
Peacemaker
contribu-
point
arguably
to some
covered
This distinction
critical.
California
Garvey,
Cal.Rptr. at
ting factor.
its
Supreme
recently
Court
elaborated on
presence
at 711.
of such
770 P.2d
rationale, “Liability and corre-
Partridge
minor,
cause,
give
regardless of how
would
coverage
in-
sponding
third-party
under
Partridge.
Id.
rise
carefully
must
distin-
surance
expectations
parties
reasonable
applied
guished
coverage analysis
from the
served
efficient and
not be
when the
property
Proper-
first-party
in a
contract.
express-
cause of
loss is
predominating
insurance,
insurance,
unlike
ty
liability
policy,
ly
by the terms of the
negligence
excluded
establishing
with
unconcerned
nevertheless, coverage
assessing
liability.” Gar-
is extended.
or otherwise
tort
coverage,
first-party
insured
Indemnity
McKillip,
insurance
v.
2. In
1. Travelers
Co.
(Tex.1971);
Employers Na
third-party
in-
S.W.2d 160
Auten
for his own loss. In
is covered
(Tex.App.
Norrell, details of the incident. William Kerr and A.T. Wolfe went told McLain the indica- hunting. They a vehicle from that there no deer rented McLain testified they Lee which used to drive to McLain filled out hunting. Richard tion of also hunting report from the fields. On the last whether report. accident asked hunting day, hunting. decided to leave the (Norrell) was Officer the victim hunting Ac- fields return vehicle. that he was not. McLain McLain indicated keep him to cording to Norrell told with on his discussions based answer *14 gun hip they and in case his holster on his He also based his answer Kerr Wolfe. way way deer on the On the saw a back. a incident on on the fact that the occurred back, they had a flat tire. Norrell started by private property. paved road surrounded Kerr, intending changing the tire. to as- they that have McLain testified would Norrell, pistol his from his sist removed adjoining permission needed to hunt on the place in order to it inside the vehicle. belt private property. dropped pistol. discharged, the It Kerr pertinent language in indi- the killing Norrell. “only enjoyed coverage cates that Kerr Holland, designated repre- Michael the hunting. Legisla- engaged in” Our while syndicate, the C.J. Warrilow sentative take, “hunt” ture has that “includes said in intent opinion, that is a testified take, kill, pursue, trap, attempt and the to determining major consideration in whether Ann. kill, & trap.” Tex.Parks Wild.Code person hunting. a is He also said that the 1976). 61.005(1)(Vernon In the instant § alleged hunting to in person is the best case, that all of circumstances indicate the say position to or not he was actu- whether incident, prior during to the actual hunting. ally hunting the now ceased and men were had i.e., mission, returning the on а different incident, (the day of On the the Kerr Having Mr. Lee. exam- rented vehicle to gave dropped pistol) person who evidence, I ined all of the would conclude stated, Kerr statement Officer Chaffin. greater weight and preponderance that the being just decided that this the last “[W]e evidence that William of all credible is season, give up go day of this we’d in engaged hunting at Kerr was not home_just quit year_ the ... on for grant I a new time of the incident. would got Jeep into and started home.” [W]e on trial this issue. trial, During Kerr that their hunt testified have until their arrival at would continued point error sustained majority however, Lee’s; he also said that while that court twenty-one and held the trial fields, got leaving hunting they aon “by failing its to order abused discretion a gate. drove four or five miles to road and King’s] [attorney withdrawal passed through gate, this Once mis- failing to motion for grant Warrilow’s place, permission continued Lee’s King’s trial when the nature required. would be Kerr did not have hunt testimony became witness] [as area and permission hunt in this question apparent.” There is no it. anything shot without not hаve provisions Discipli- violated the ethical of the men had incident occurred after all nary exceptions Rule stat- 5-102[A] through gate. Kerr admitted passed in Rule Disciplinary ed 5-101[B][l]-[4]. incident, he that at the time was II, Ann. Tex.Gov’t Code Title Subtitle See shoot; rather, looking something he (Vernon 1988).2 These enact- G rules were concentrating pistol placing his in- protect attorneys clients of ed to changing the the vehicle and tire. side public general from the intentional McLain, attorneys. wrongdoing and/or mistakes of field officer with the Michael Inc., Quintero Homes, Wildlife, v. Walter Division arrived at Jim Colorado II, 1990). Ann. Title Subtitle also Tex.Gov't Code 2. See (Vernon G, Supp. Rules 1.15 and Rule 3.08 allegiance to his light of his (Tex.App. Corpus Christi
S.W.2d — n.r.e.). position. of these client’s writ ref 'd Breaches attorney receiving pri rules result in the Furthermore, testifying advocate reprimand, suspension, or public vate or easily impeachable because of more uniquely are disbarment. These remedies may have as an advocate interest he they prevent the client appropriate because outcome of his client’s case. Wilson suffering any further mistreatment (1911), Wilson, 132 N.W. Neb. ethical misconduct. due to counsel’s attorney, the defendant wife’s who was however, believe, King’s I do not action, ap- divorce principal witness of the trial conduct warrants reversal The Ne- peared as her divorce counsel. F. judgment. court’s Professor John Sut- the attor- Supreme criticized braska Court ton, Jr., Testifying Advo- in his article The conduct, role as ney’s saying that his dual stated, cate, (1963), 41 Texas L.Rev. 477 against the ethics witness-advocate “is discussion, that: relevant to this unseemly, and no legal profession, *15 by interest —occasioned The advocate’s (Em- case. weakens the defendant’s doubt parti- merely by an advocate’s his fee or added.) Wilson, 132 N.W. at phasis prevail seeing instinct—in his client san case, may facts any given In the trier of lessens, strengthens, credibility not his giving weight little to a justified in testimony. weight and the of his When- testimony. Many witness-advocate’s given lawyer’s testimony a is un- ever weight of a witness’ tes- factors affect the by particular jury or weight usual however, question and the timony, his judge, lawyer’s demeanor and usually left to weight is best of evidence community similar standing in the Seaboalt, of facts. the trier responsible. The cir- likely are factors does present appeal, In the the record that he is both advocate and cumstance reflect, argue, appellants fail not itself enhance his stand- witness does not or King’s testimony was untruthful that advocacy a witness or make his as certainly credibility. Appellants in lacking appealing. appearance more any opportunity expose weak- had the lawyer as either a witness or particular thorough testimony in a King’s nesses may be influential with an advocate case, present In the cross-examination. reputation jury, by reason of judge such, not, as cause King’s dual role did difficult personal magnetism, but is or improper judgment. he simultaneous- rendition of to see how the fact that record to his not refer to the ly appears majority as both could increase does fact, cross-examining King on the trier of how influence show where or [footnote I note that handicapped defense counsel. omitted] occurs, King a retrial will still be when King, that Apparently, majority fears and, attorney perhaps, an expert witness advocate, acting witness and by as both may serve though may he or not even standing as a wit enhanced his somehow counsel. Retrial will again as Kerr’s trial judgment ness, reversing the by opportunity to defense counsel’s not make they obviously assume that point, this testimony any easier. impeach King’s intelligence to consider and jury lacked punish- now stands majority’s opinion as it King’s interest weigh effect of attorney. the sins of the es the client for witness’ An interested case. however, rules, disciplinary were jury can prohibited, because need not be rather, litigant; designated penalize of the interest. weigh the effect and will duties an is to delineate the purpose their Vandaveer, 231 S.W.2d Seaboalt judicial proceeding owes in a advocate writ (Tex.Civ.App. — Eastland weight denying proper By his client. case, n.r.e.). King’s present ref’d testimony, majority imputes King’s keenly intеrest is so evident partisan would, King’s professional indiscretions unsophisticated jury the most even could, client. in this case did consider practice acting King’s
I condemn his client. witness advocate for
both
Ample justification preventing becoming found
practice prevalent from respect to maintain for the
in the need due legal
integrity profession, which to suffer such conduct.3
bound punish- sanctioned
should be whatever Supreme
ment the Texas or our dis- Court grievance appropri-
trict committee finds conclude,
ate. I after careful consideration attorney thinking, reflective
King’s prejudice oppos- conduct did not
ing party to such an it caused extent that im- probably caused rendition of an Tex.R.App.P.
proper Compare verdict. error).
81(b)(1)(judicial
I not hold that the trial court failing its discretion to order
abused King’s by not withdrawal and/or mistrial
granting Warrilow’s motion for *16 attorney King’s nature of testi-
when the apparent.
mony became judg-
I reverse the trial court’s remand the trial
ment and case for a new premises. out in its
as set KING
John and Veronica
King, Appellants,
v. EVANS, al., Appellees. D.
Earl et
No. 04-88-00348-CV. Texas, Appeals
Court
San Antonio.
March
Rehearing Denied
June
judgment
Supreme
presented in
Court
of Criminal
lack of ethical
other
3. Our
and Court
ble
recently adopted
Lawyer's
Appeals
as this one
that this creed
"The Texas
cases as well
indicates
auspicious
appears
re
most
See Mill
Mandate for
at a
time.
Creed—A
Professionalism"
Wiesenthal,
(Tex.1989);
growing practice
sponse
abuse of the
v.
S.W.2d 626
to the
house
Grimes,
(Tex.1989).
profession
Cosgrove
legal system.
urge