United States District Court, E.D. Texas, Sherman Division
MEMORANDUM OPINION AND ORDER
L. MAZZANT UNITED STATES DISTRICT JUDGE
before the Court is Plaintiff Domain Protection's Motion
to Disqualify David Vinterella From His Dual Role as Both
Witness and Counsel for the Defendant Sea Wasp (Dkt. #150).
Having considered the motion and the relevant pleadings, the
Court finds that Domain Protection's Motion is
December 11, 2018, David Vinterella
(“Vinterella”) provided testimony as Sea
Wasp's only witness in opposing Domain Protection's
Motion for a Preliminary Injunction (Dkt. #150; Dkt. #160).
Vinterella's testimony was provided over a course of
three affidavits. In those affidavits, Vinterella attested to
(1) that Sea Wasp is an accredited registrar of domain names
by the Internet Corporation for Assigned Names and Numbers
(“ICANN”); (2) that Sea Wasp is the current
registrar of record of the disputed domain names as a result
of Sea Wasp's 2017 purchase of the assets of its
predecessor, Dark Blue Sea Pty. Limited d/b/a Fabulous.com;
(3) that the domain name portfolio has been the focus of an
ongoing ownership dispute since 2014; (4) that the disputed
domain names were placed under an executive lock by Sea
Wasp's predecessor in 2014, and was active when Sea Wasp
purchased the domain name registration business; (5) that Sea
Wasp restored and is currently maintaining the executive lock
on the disputed domain names; (6) that unauthorized changes
to the name server data on the domain names were made; (7)
that Sea Wasp worked to restore the status quo on the domain
name portfolio by: (i) reversing the unauthorized changes
made to the name servers on the domain names, and (ii)
ensuring that the executive lock was active on the entire
portfolio; (8) that despite the executive lock, Plaintiff
retained the ability to renew domain names that were set to
expire, that Domain Protection received daily renewal notices
for expiring domain names, and that Plaintiff failed to renew
the domain names; and (9) that ICANN policy and procedure
validates the actions taken by Sea Wasp to preserve the
(Dkt. #160). In making these assertions, Vinterella stated:
“I have personal knowledge of the facts stated herein
through the routine performance of my duties as counsel at
Faia working on behalf of Sea Wasp” (Dkt. #60, Exhibit
5). Then, on February 29, 2019, Vinterella made his
appearance as co-counsel in the present action (Dkt. #150)
(citing Dkt. #95).
24, 2019, Domain Protection filed Plaintiff Domain
Protection's Motion to Disqualify David Vinterella from
His Dual Role as Both Witness and Counsel for the Defendant
Sea Wasp (Dkt. #150). Domain Protection argues that because
“Vinterella was offered by Sea Wasp as a witness in an
effort to establish essential facts in opposition to the
preliminary injunctive relief requested by Plaintiff, ”
the Court should disqualify Vinterella (Dkt. #150).
Specifically, Domain Protection claims that it is
“unfairly handicapped in its ability to properly test
and argue before the Court as to the veracity of Mr.
Vinterella's testimony as a witness” (Dkt. #150).
Sea Wasp, through Vinterella, opposes Domain Protection's
Motion (Dkt. #160). Sea Wasp argues that “while these
attestations were made by [Vinterella], these statements
could have also been made by other personnel at Sea
Wasp” (Dkt. #160). Sea Wasp points to four other
individuals who have “unfettered access to the same
business records data maintained by Sea Wasp that was
utilized in the creation of these affidavits; thereby,
rendering [Vinterella's] testimony not necessary”
(Dkt. #160). Thus, Sea Wasp argues that Vinterella's
statements were not “necessary” to establish an
essential fact and he should not be disqualified (Dkt. #160).
Additionally, Sea Wasp argues that because Vinterella is not
an expert witness and will not testify at trial, Vinterella
should not be disqualified (Dkt. #160). Domain Protection
counters that Sea Wasp has erred in its understanding of the
law and that Vinterella should still be disqualified (Dkt.
#163). The Court now considers Domain Protection's
Fifth Circuit has “made clear that
‘disqualification cases are governed by state and
national ethical standards adopted by the court.'”
FDIC v. U.S. Fire Ins. Co., 50 F.3d 1304, 1311- 12
(5th Cir. 1995) (quoting In re Am. Airlines, Inc.,
972 F.3d 605, 610 (5th Cir. 1992)). In the Fifth Circuit,
when considering disqualification of an attorney, district
courts generally rely upon the following: (1) the local rules
in the district; (2) American Bar Association's
(“ABA”) Model Rules of Professional Conduct; (3)
the ABA's Model Code of Professional Responsibility; and
(4) the state rules of conduct. Horaist v. Doctor's
Hosp. of Opelousas, 255 F.3d 261, 266 (5th Cir. 2001);
Ayus v. Total Renal Care, Inc., 48 F.Supp.2d 714,
714 (S.D. Tex. 1999). Beyond the various rules and codes
identified above, “[a] court should be conscious of its
responsibility to preserve a reasonable balance between the
need to ensure ethical conduct on the part of lawyers
appearing before it and other social interests, which include
the litigant's right to freely chosen counsel.”
Woods v. Covington Cty. Bank, 537 F.2d 804, 810 (5th
Cir. 1976) (citing Emle Indus., Inc. v. Patentex,
Inc., 478 F.2d 562, 564-65 (2d Cir. 1973)).
Eastern District, “the standards of professional
conduct adopted as part of the Rules Governing the State Bar
of Texas shall serve as a guide governing the obligations and
responsibilities of all attorneys appearing in this
court.” Eastern District of Texas, Local Rule AT-2. In
Texas, disqualification is a “severe remedy.”
NCNB Tex. Nat'l Bank v. Coker, 765 S.W.2d 398,
399 (Tex. 1989). Motions to disqualify are subject to an
exacting standard both to protect a party's right to
counsel of choice as well as to discourage the use of such
motions as a “dilatory trial tactic.”
Id.; Tex. Disciplinary R. Prof'l Conduct 3.08
Model Rule 3.7 provides “[a] lawyer shall not act as an
advocate at a trial in which the lawyer is likely to be a
necessary witness.” Texas Rule of Disciplinary Conduct
3.08(a) provides “[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.” Diamond Consortium, Inc. v.
Manookian, No. 4:16-cv-00094 (E.D. Tex. May 31, 2017)
(citing Tex. Disciplinary R. Prof'l Conduct 3.08(a)). As
the Supreme Court of Texas has stated, “[t]he fact that
a lawyer serves as both an advocate and a witness does not in
itself compel disqualification.” In re
Sanders, 153 S.W.3d 54, 57 (Tex. 2004) (citing Ayres v.
Canales, 790 S.W.2d 554, 557-58 (Tex. 1990); In
re Chu, 134 S.W.3d 459, 464 (Tex. App.-Waco 2004, orig.
proceeding); May v. Crofts, 868 S.W.2d 397, 399
(Tex. App.-Texarkana 1993, orig. proceeding)). Rather, a more
exacting standard is required. See Coker, 765 S.W.2d
Texas law, “[d]isqualification is only appropriate if
the lawyer's testimony is “necessary to establish
an essential fact.” Id. (citing Tex.
Disciplinary R. Prof'l Conduct 3.08(a)). To establish
that disqualification is appropriate, “the party
requesting disqualification must demonstrate that the
opposing lawyer's dual roles as attorney and witness will
cause the party actual prejudice.” Id. (citing
Ayres, 790 S.W.2d at 558). For instance,
“disqualification is inappropriate under Rule 3.08 when
opposing counsel merely announces their intention to call the
attorney as a fact witness without establishing both a
genuine need for the attorney's testimony and that the
testimony goes to an essential fact.” In re
Garza, 373 S.W.3d 115, 118 (Tex. App.-San Antonio 2012, orig.
proceeding) (citing In the Int. of A.M., 974 S.W.2d
857, 864 (Tex. App.-San Antonio 1998, no pet.)).
Disqualification is appropriate, however, when counsel
“effectively ‘testif[ies]' as [the sole]
expert witness in [a] controverting affidavit in order to
defeat [another party's] motion . . . .” Mauze
v. Curry, 861 S.W.2d 869, 870 (Texas 1993).
Disqualification is additionally appropriate even if counsel
is not serving as an expert. See Southtex 66 Pipeline
Co., Ltd. V. Spoor, 238 S.W.3d 538, 544 (Tex.
App.-Houston [14th Dist.] 2007, pet. denied) (citing
Mauze, 861 S.W.2d at 870). When considering whether
to disqualify an attorney, “preservation of a popular
faith in the judicial system is a primary
consideration.” U.S. Fire Ins., 50 F.3d at
1311-16. As the Supreme Court of Texas has stated,
“Rule 3.08 is grounded principally on the belief that
the finder of fact may become confused when one person acts
as both advocate and witness.” Anderson Producing
Inc. v. Koch Oil Co., 929 S.W.2d 416, 422 (Tex. 1996).
To be sure, one of the concerns of an attorney acting in a
dual role is that the attorney's dual role may place the
attorney “in the unseemly and ineffective position of
arguing his own credibility.” Warrilow v.
Norrell, 791 S.W.2d 515, 521 n.6 (Tex. App.-Corpus
Christi 1989, writ denied).
Sea Wasp concedes that “some of the statements
contained in the affidavits are likely essential factual
assertions in Sea Wasp's defense of this matter . . .
.” (Dkt. #160). Despite Sea Wasp's concession, Sea
Wasp claims that Vinterella should not be disqualified
because Vinterella's testimony “was not
necessary to establish these facts” (Dkt. #160).
Rather, Sea Wasp maintains that four other witnesses could
provide the same factual assertions; thus, Vinterella was not
“necessary to establish an essential fact” under
3.08. Vinterella provided three affidavits. In those
affidavits, Vinterella swore that he had personal knowledge
of the assertions he was making. Among his assertions,
Vinterella claimed that Sea Wasp had “maintained”
the executive lock which is in dispute in this action (Dkt.
#150, Exhibit 1). It is ...