Opinions, March 10, 2016: Disqualifying an Attorney

The First Court of Appeals released its interesting memorandum opinion this morning in a mandamus proceeding, In re Groves, No. 01-15-00537-CV, concerning a motion to disqualify an attorney after an outcry of sexual abuse was allegedly made to the attorney.

In the underlying case, Keith Gross represented James Wesley Groves in his proceeding to modify the terms of the order concerning his children with Avette Mathis. Gross explained that on April 13, 2015, Groves informed him that one of the children had made an outcry of sexual abuse against the child’s step-father to Groves’s wife. Gross met with Groves and his wife to make a reasonable inquiry into the foundation for filing a TRO. Gross informed the trial court that he had forgotten that an amicus had been appointed because he had had little interaction with the amicus and had been on the case for a short time. The child had come with Groves and his wife to the meeting and was present when they told Gross what allegedly occurred. He further asserted that the only thing he said to the child was “Is this true what your parents are saying? Do you know the difference . . . between a lie?” The child stated she knew the difference between the truth and a lie.

The amicus learned on April 18, 2015 that there had been an outcry. Gross told the amicus about the meeting and his conversation with the child. The amicus instructed Gross not to speak with the child and later met with the child.

Temporary orders were set for April 28. The day before, Mathis filed  a motion to disqualify Groves, contending that he was “an essential fact witness in this matter” and Mathis would be prejudiced by his “dual role as an advocate and a witness.”  Gross’s conduct made him “a material witness as to the essential facts as to whether or [not] sexual abuse occurred and any other related facts which form the basis of [Groves’s] claims or defenses” including Groves’s “filing suit to restrict [Mathis’s] possession and access using knowledge gained from Keith A. Gross’[s] actions as a material witness.” Gross and Groves responded that disqualification was inappropriate because Mathis failed to identify any essential facts that were necessary to the case and required Gross’s testimony, and failed to articulate how Gross’s supposed dual roles would prejudice her case. Mathis then supplemented her motion to disqualify with a motion for sanctions for tampering with a witness. (Side note: there must have been some very fast drafting and filing going on here).

The next day, Mathis’s counsel stated he would like to take up the motion to disqualify and alleged that Gross intentionally interfered with the Court’s core function by interviewing the child without the amicus’ consent. No witnesses were sworn and no exhibits were offered or admitted into evidence. The trial court granted the motion to disqualify and ordered Gross to take the ad litem’s CLE that is offered for CPS cases and to pay a fine of $2,500.00 into the registry of the court. The trial court did not state a basis for the ruling, did not sign an order or make any findings of fact.

Gross and Groves filed the mandamus, arguing that the trial court abused its discretion in disqualifying and sanctioning Gross because Mathis did not establish that Gross’s conduct significantly interfered with the court’s legitimate exercise of its core functions and the record does not establish a violation of a trial court order. They also alleged that Mathis failed to establish Gross’s bad faith.

The Court of Appeals noted that, in applying its inherent power to impose sanctions, the trial court must make findings to support its conclusion that the conduct complained of significantly interfered with the court’s legitimate exercise of its core functions. Though the trial court did not sign an order or make findings, the COA said it would review the record to determine whether the trial court abused its discretion.

Because no witnesses were sworn and no evidence offered or admitted, the record contained no evidence to support an imposition of sanctions on Gross. Accordingly, the COA concluded the trial court abused its discretion in sanctioning Gross based on its inherent authority to sanction.

On the issue of disqualification, the COA noted that Mathis initially moved to disqualify Gross based on the lawyer-witness rule of the Texas Rules of Disciplinary Conduct, but that issue was not urged at the hearing and no evidence was offered to support Mathis’ argument. The COA noted that disqualification of an attorney due to his status as a potential witness is appropriate only if the attorney’s testimony is necessary to establish an essential fact. “The fact that an attorney serves, or may serve, as an advocate and witness does not compel disqualification.” The COA agreed with Gross and Groves that Mathis had failed to demonstrate that Gross’s testimony is necessary to establish any particular essential fact.

In conclusion, the COA vacated the sanctions and disqualification order.

 

 

 

 

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