Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:In the underlying suit, Mary Dowdy created a trust naming both of her daughters, Lynn Slusser and Frances Wright, as beneficiaries; Wright was named the trustee. Dowdy executed a deed transferring certain real property into the trust. The following year, Dowdy amended the trust to name Wright as the sole beneficiary. Dowdy died six months later on Jan. 23, 2001. On Jan. 7, 2002, Wright recorded a special warranty deed conveying the property to herself. In May 2002, Slusser filed suit against Wright, alleging that Wright improperly induced Dowdy to amend the trust. Slusser claimed Wright breached her fiduciary duties to Slusser when she did not notify her of the amendment to the trust; she also complained of Wright’s self-dealing, conversion of trust funds and failure to account for trust funds. Slusser hired Thomas Terrell to represent her. She executed a deed on the same property, granting an interest in the property to Terrell, as part of a contingency fee agreement with him. Wright moved to disqualify Terrell under T.Disc.R. 3.08. The trial court granted the motion. The deed in favor of Terrell was withdrawn two weeks later. Slusser files for a writ of mandamus to have the disqualification order reversed. HOLDING:Writ conditionally granted. The court finds the disqualification under Rule 3.08 was improper. The statute generally prohibits lawyers from serving as witnesses in their own cases except in limited situations. The court says it cannot discern from Wright’s motion to disqualify which portion of Rule 3.08 supposedly applies, though Wright generally states that Terrell’s testimony would be relevant to Slusser’s motivation for filing her lawsuit. “While a party’s motivation for filing a lawsuit may be relevant in some cases, and in many cases may be”controversial,’ that is not the test under Rule 3.08,” the court rules. “Subsection (a) requires that the testimony be necessary to”establish an essential element on behalf of the [testifying] lawyer’s client.’ . . . Subsection (b) requires that the testimony be”substantially adverse to the [testifying] lawyer’s client.’” Here, the court finds, Wright failed to establish how Slusser’s motivation for filing the lawsuit establishes an essential element of Slusser’s breach of fiduciary suit. And in Wright’s countersuit to quiet title, Wright asserted Slusser had no ownership interest in the contested property. “However, in a suit to quiet title, a plaintiff must base her action on the strength of her own title, and not the weakness of her opponent’s title.” Furthermore, Wright’s attorney never affirmatively and unequivocally stated he would call Terrell as a witness. The court stresses that Rule 3.08 is not to be used as a tactical weapon to deprive a party of his or her chose attorney. Finally, the court finds no evidence to support the contention that T.Disc.R.Prof.C. 1.08(h), a conflict of interest rule, prohibits a lawyer from acquiring a lien on property to secure a contingency fee. OPINION:Marion, J.; Lopez, C.J., Stone and Marion, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.