In Friday’s Orders of the Supreme Court of Texas, there was one Tyler case, In re Frost. It’s the divorce case where the husband and his attorney went into the wife’s residence when the wife was out of town and conducted some “do it yourself” discovery.
The wife had changed the locks on that residence. So, in order to get into the house, the husband got a locksmith to make him a duplicate of the new key. The wife figured that the changed locks (and the fact that the husband didn’t ask her for a key) showed that the husband and his attorney should not have gone into the house. But since they did, she figured that the husband’s attorney had made himself a fact witness, and should be disqualified from continuing as counsel.
The trial court agreed and disqualified. The Tyler court didn’t and, via mandamus, reversed the trial court. The Tyler court ruled that there were no temporary orders in place specifically concerning the residence, and that the wife had failed to show how she would be harmed by the husband’s attorney continuing in his advocacy role. The wife tried to get the Supreme Court of Texas to reinstate the trial court’s decision. The Supreme Court requested a response from the husband, but ultimately denied the wife’s request.
This case, by far and away, has generated more interest than any single case on the blog. It’s easy to see why. Everyone, lawyer or not, understands the drama inherent in divorce. And the lawyers I’ve spoken to were interested because disqualification was at stake, and because this decision bears on what is and isn’t fair game in family law cases. So, if you’re just plain interested, or if you’ve got a case with similar discovery or disqualification issues, here are the redrafted petition, the response, and the reply.
In the interest of full disclosure, I was involved behind the scenes in the redrafted petition. I offer my congratulations to J. Bennett White, the husband’s counsel, and to his associate, Chris Massey, who worked on the briefing before the Supreme Court.