Unreported / Non-Citable
Background
Benjamin Garcia, an attorney, drafted estate planning documents for Issam Hassan in April and May 2023, including a power of attorney naming Issam’s nephew Nicholas as agent and an irrevocable family trust. Issam died May 31, 2023. On February 28, 2024, Garcia notified Naji Hassan (Nicholas’s brother) that Garcia had drafted these documents. When Naji sued Nicholas and the estate executor for breach of fiduciary duty and fraud on June 10, 2024, Garcia appeared as Nicholas’s counsel on July 1, 2024.
Naji waited over nine months before filing a motion to disqualify Garcia on April 15, 2025—just five weeks before trial. Naji argued Garcia must be disqualified under Texas Disciplinary Rule 3.08 because Garcia would be a “lynchpin” fact witness regarding Issam’s mental capacity when signing the documents. Naji contended Garcia could not serve as both fact witness and advocate.
Garcia argued the motion was untimely, that other witnesses could testify to Issam’s capacity, that he did not intend to testify, and that Naji had known of the conflict for over a year before moving to disqualify him. After two hearings (July 11, 2025, and May 1, 2026) and Garcia’s April 2026 deposition, the trial court granted Naji’s supplemental disqualification motion on May 6, 2026. Garcia then petitioned for mandamus relief.
The Court’s Holding
The Texas Court of Appeals conditionally granted the writ of mandamus and ordered the trial court to vacate the disqualification order. The court held that failure to timely seek disqualification constitutes waiver as a matter of law. The record clearly established that Naji knew or should have known of Garcia’s involvement by February 28, 2024, when Garcia notified him in writing. Naji then filed suit on June 10, 2024, and received actual notice when Garcia filed Nicholas’s answer on July 1, 2024. Despite this knowledge, Naji waited over nine months before filing the disqualification motion on April 15, 2025.
The court found the trial court abused its discretion in granting the disqualification motion. Applying Texas law requiring an “exacting standard” to discourage disqualification motions used as dilatory tactics, the court concluded that the timing of Naji’s motion—filed just five weeks before trial, after the case had proceeded through discovery, summary judgment, and mediation—evidenced tactical gamesmanship rather than a legitimate concern. The court also noted that Naji presented no evidence of actual prejudice if Garcia served as both witness and advocate, and that Garcia presented substantial documentary evidence and other witness testimony regarding Issam’s mental capacity.
Key Takeaways
- Failure to promptly challenge counsel’s dual role as witness and advocate results in waiver; delay of nine months or more after notice constitutes unreasonable delay as a matter of law.
- A disqualification motion filed shortly before trial, after litigation has proceeded through multiple phases including discovery and mediation, is presumptively a dilatory tactic and an abuse of discretion.
- Courts must apply an exacting standard to disqualification motions and will not grant them absent evidence that disqualification is warranted, including evidence of actual prejudice.
- The right to counsel of choice is a serious interest; disqualification is a severe remedy that can result in immediate and palpable harm and disruption to proceedings.
Why It Matters
This decision reinforces that while Texas Disciplinary Rule 3.08 prohibits a lawyer from serving as both fact witness and advocate in the same matter (subject to narrow exceptions), parties cannot use disqualification motions as a trial tactic to ambush opposing counsel at the last moment. The court’s emphasis on the “exacting standard” and the principle that courts must discourage dilatory use of disqualification motions sends a clear message: parties who know or should know of a conflict have a duty to raise it promptly or forfeit the right to challenge the representation.
The decision also reaffirms the constitutional and policy interest in a party’s right to counsel of choice. By granting mandamus relief, the court signaled that trial courts abuse their discretion when they allow disqualification to be weaponized through delay, particularly when the moving party has known of the conflict for months and allowed substantial litigation to proceed before filing the motion.