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Click here for the full text of this decision FACTS: As part of John Chu’s Wyoming divorce from his wife Kimberly, he was to have two months’ vacation with the couple’s two children in the summer. When Chu arrived in Texas to pick up the children, Paul Fulbright, the children’s attorney ad litem filed a motion to suspend the visitation order because the children were too sick to travel. The trial court granted the petition ex parte, pending a doctor’s certification that the children were healthy enough to travel. The trial court held a hearing on the petition after Chu filed objections. By then, the doctor had certified that the children could travel, and Chu was allowed to take them to Wyoming. Chu filed a motion to disqualify Fulbright as the children’s ad litem, but the trial court denied the motion and awarded Fulbright interim attorneys’ fees. Chu filed for a writ of mandamus against the trial court, asking this court to compel that court to disqualify Fulbright. He argues that Fulbright was disqualified because he violated the attorney-witness ethics rule. Chu cites Texas Disc.R.Prof’l Conduct Rule 3.08 for support. That rule states: “A lawyer shall not accept or continue employment as an advocate before a tribunal in a contemplated or pending adjudicatory proceeding if the lawyer knows or believes that the lawyer is or may be a witness necessary to establish an essential fact on behalf of the lawyer’s client, unless: (1) the testimony relates to an uncontested issue.” Chu says there were contested issues, which would not except Fulbright’s conduct from Rule 3.08. This court stayed the fees pending the writ’s resolution. HOLDING: Writ denied. The court finds that even though Chu’s original motion was phrased as a motion to disqualify, it is more properly characterized as a motion to remove. Nevertheless, the court agrees to review the issue under both standards. The court agrees that the attorney-witness rule may serve as a ground for disqualification because of the confusion that can arise when the attorney advocates persuasively for a client, and as a witness, where the attorney testifies from personal knowledge. The court points out that under Rule 3.08, an attorney is not automatically disqualified merely because he may be called as a witness by his opponent. In addition, even if an attorney violates the rule, the party seeking disqualification must still prove that the violation caused actual prejudice. As applied to this case, the court finds that Chu never explains what issue is supposedly contested. Though Chu said he would want to call Fulbright as a witness at the hearing on summer visitation to testify about Chu’s custody and access to the children, the court finds that Chu never linked those issues to essential facts Fulbright’s clients � the children � would need to establish. Further, the trial court held a hearing on Chu’s objections, but Chu did not attempt to call Fulbright as a witness then. To the extent, then, that Chu’s motion was premised on Rule 3.08, the court holds that the trial court did not abuse its discretion in denying the motion. The court explains that Family Code �107.006(c) governs the removal of attorneys ad litem, and removal is at the discretion of the trial court. Chu advances several theories for why removal was necessary under �107.006(c). Chu argues Fulbright did not timely interview him, but the court finds evidence to the contrary. Chu argues Fulbright did not verify his petition to suspend Chu’s visitation, but the court finds that the defect, if any, is not one justifying removal. Chu argues Fulbright did not serve him a copy of the petition in advance of the hearing. Again, the court finds that the procedural error, if any, does not justify removing Fulbright. Additionally, the court rules that the trial court has not yet abused its discretion in suspending discovery. And because Chu has not yet asked the court to force the court reporter to prepare a transcript of Fulbright’s interview of one of the children, mandamus is not yet appropriate. Finally, the court refuses to disturb the trial court’s award of attorney ad litem fees to Fulbright, which are to be split 25 percent to 75 percent between the ex-wife and Chu, respectively. Chu does not suggest that payment of his portion will jeopardize his ability to continue litigation. OPINION: Gray, C.J.; Gray, Vance and Reyna, JJ.

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