In re Nicholas Hassan, 07-26-00292-CV, July 09, 2026.
On appeal from 72nd District Court of Lubbock County
Synopsis
A Rule 3.08 motion is not self-executing, and a party can waive disqualification by waiting too long after learning the underlying facts, especially where the party keeps actively litigating instead of pressing for prompt relief. In In re Hassan, the Amarillo Court of Appeals held mandamus relief was warranted because the movant knew for months that opposing counsel drafted the disputed instruments, delayed seeking and pursuing a hearing, continued litigating, and then sought to remove counsel of choice despite the disruption that disqualification would cause.
Relevance to Family Law
This is a family-law case in everything but caption. The same pattern arises constantly in Texas divorce, SAPCR, and marital-property litigation: one side’s lawyer previously drafted estate-planning documents, transfer instruments, premarital or postmarital agreements, trust paperwork, business records, or family settlement documents that later become fact issues in the suit. In re Hassan is a strong reminder that if a family-law litigator intends to seek Rule 3.08 disqualification, the motion must be filed and pursued promptly; otherwise, delay, continued discovery, mediation, dispositive motion practice, and pretrial activity may support waiver and defeat the request altogether.
Case Summary
Fact Summary
The underlying dispute concerned late-in-life estate planning changes made by Issam Hassan after his son Tom suffered a catastrophic accident and later died. Attorney Benjamin Garcia prepared first a power of attorney naming Tom as agent, then a replacement power of attorney naming Nicholas Hassan as agent, and later drafted an irrevocable trust transferring assets, including Issam’s home, into the trust. Issam died shortly after those transactions.
Naji Hassan later sued Nicholas and the estate’s executor, asserting claims including breach of fiduciary duty and fraud, apparently based on the theory that the estate-planning changes improperly reduced his expected inheritance. Garcia appeared as counsel for Nicholas, and the pleadings and attached documents made plain that Garcia had drafted the operative instruments.
The timing mattered. Garcia had notified Naji’s counsel in writing by February 28, 2024, that he had been involved in Issam’s estate matters and that the trust had been created. Garcia formally appeared for Nicholas on July 1, 2024. Yet Naji did not file his motion to disqualify until April 15, 2025, roughly nine months after Garcia’s appearance and just weeks before a May 2025 trial setting.
Even then, Naji did not press the motion promptly. He continued litigating: pursuing discovery, participating in Rule 91a and summary-judgment activity, filing a motion to compel, serving witness designations, participating in mediation, filing a motion to quash, and amending pleadings. Only on June 26, 2025, the day before mediation was to resume, did he submit a proposed order setting the disqualification hearing.
At the first hearing, Naji argued Garcia and Garcia’s staff were necessary fact witnesses on Issam’s mental capacity when the power of attorney and trust documents were executed. Garcia responded that Naji offered no evidence, that other witnesses could testify regarding capacity, that Garcia’s testimony was not necessary, that there was no showing of actual prejudice, and that the motion was untimely. The trial court took the matter under advisement.
Months later, Garcia was deposed. Eight months after the first hearing, Naji filed a supplemental motion addressing Garcia’s deposition testimony. After a second hearing, the trial court granted disqualification by signed letter ruling. Nicholas sought mandamus relief.
Issues Decided
- Whether a motion to disqualify counsel under Texas Disciplinary Rule of Professional Conduct 3.08 may be waived by substantial delay after the movant knows the relevant facts.
- Whether a movant’s continued litigation activity after filing the motion, without diligently pursuing a prompt hearing and ruling, defeats disqualification.
- Whether mandamus relief is appropriate when a trial court disqualifies counsel despite waiver-by-delay principles and the significant prejudice associated with erroneous disqualification.
Rules Applied
Rule 3.08 of the Texas Disciplinary Rules of Professional Conduct governs the lawyer-as-witness problem. But Texas courts have repeatedly emphasized that disqualification is a severe remedy, not a routine procedural tool. The court’s analysis was shaped by several familiar principles:
- Disqualification can cause immediate and palpable harm, disrupt trial proceedings, and deprive a party of counsel of choice. The opinion cites In re Zaidi, 732 S.W.3d 525, 532 (Tex. 2026), for that proposition.
- A disciplinary rule does not mechanically compel disqualification. Texas courts treat disqualification as an extraordinary remedy requiring careful scrutiny.
- Waiver principles apply to motions to disqualify. The court relied on In re Nitla S.A. de C.V., 92 S.W.3d 419 (Tex. 2002), and Vaughan v. Walther, 875 S.W.2d 690 (Tex. 1994), both of which teach that an unreasonable delay in seeking disqualification may waive the complaint.
- A party seeking disqualification must act promptly after learning the facts supporting the motion and must diligently pursue the request rather than use it tactically.
In practical terms, Nitla and Vaughan remain the anchor authorities: once the factual basis is known, a litigant cannot sit on the issue, continue using the lawyer’s participation as part of the case landscape, and then seek removal when disqualification becomes strategically advantageous.
Application
The Amarillo court treated timing and litigation conduct as the center of gravity. The facts establishing Garcia’s involvement were not concealed. Naji had written notice in February 2024 that Garcia handled Issam’s estate planning and trust work. By July 2024, Garcia had appeared in the case for Nicholas, and the answer itself attached documents reflecting Garcia’s role as drafter. So the factual predicate for a Rule 3.08 motion existed long before April 2025.
That filing delay alone was problematic, but the court focused even more sharply on what happened after the motion was filed. Naji did not urgently pursue a hearing. Instead, he kept litigating as if Garcia’s continued participation posed no immediate threat to the integrity of the proceeding. He sought affirmative relief, participated in scheduling and mediation activity, pursued discovery matters, and amended his pleadings. That conduct was inconsistent with the notion that Garcia’s disqualification was so necessary that the court had to remove him despite the disruption to Nicholas’s representation.
The appellate court viewed this as classic waiver-by-delay. A litigant who genuinely believes opposing counsel is a necessary witness and ethically barred from serving as advocate must move quickly and press for prompt resolution. Waiting until near trial, then failing to obtain a timely hearing, and then continuing active litigation undercuts both the urgency and the equitable basis for relief.
The severity of disqualification also informed the result. Removing counsel of choice is not a mild corrective measure. Because the remedy itself is disruptive and can materially prejudice the represented party, courts are reluctant to grant it where the movant’s own delay suggests tactical deployment rather than genuine necessity. On that record, the trial court’s ruling could not stand.
Holding
The court held that a Rule 3.08 disqualification request may be waived when the movant knows the underlying facts but substantially delays both filing and pursuing the motion. Here, the movant had early notice that opposing counsel drafted the disputed instruments, yet waited months to seek relief and then failed to pursue a prompt hearing. That delay supported mandamus relief.
The court also held that continued litigation conduct inconsistent with urgent disqualification reinforces waiver. By engaging in discovery, motion practice, mediation, witness designations, and amended pleadings while not diligently pressing the disqualification motion, the movant undermined the claim that removal of counsel was necessary. In that posture, disqualification was improper, particularly given the substantial disruption caused by depriving a party of counsel of choice.
Practical Application
For Texas family-law litigators, In re Hassan should immediately be added to the short list of cases to cite when the other side tries to disqualify counsel late in the game based on prior drafting work, prior representation, or anticipated witness testimony. The opinion is especially useful in high-conflict property cases involving trusts, business entities, reimbursement claims, tracing disputes, separate-property documentation, estate-planning instruments, and elder-capacity allegations that spill into divorce or probate-adjacent family litigation.
On the movant’s side, the lesson is straightforward: if opposing counsel drafted the deed, trust, gift instrument, premarital agreement, postmarital agreement, partition/exchange agreement, powers of attorney, or child-related documents that will become trial exhibits, do not wait to see how discovery develops before raising Rule 3.08. File early, request a prompt hearing, and build a clear evidentiary record showing why counsel is a necessary witness and why other witnesses or records will not suffice.
On the respondent’s side, Hassan supplies a strong waiver narrative. If the movant knew the facts from pleadings, disclosures, correspondence, document metadata, notarizations, or produced files, and nonetheless spent months litigating merits issues, you now have a better argument that the motion is tactical. The more the movant has pursued discovery, mediation, continuances, pretrial relief, or amendments without pressing disqualification, the stronger the waiver point becomes.
In custody litigation, the opinion may arise where a lawyer participated in prior agreed modifications, child interviews, conservatorship negotiations, or informal settlement structures that later become disputed. In divorce litigation, it will matter where counsel drafted interspousal transfers, reimbursement-related paperwork, LLC documents, trust transfers, or homestead conveyances. In either setting, Hassan reinforces that Rule 3.08 is not a late-stage reset button.
Checklists
For Seeking Rule 3.08 Disqualification
- Identify the factual basis for disqualification as soon as pleadings, disclosures, or produced documents reveal it.
- Confirm exactly why opposing counsel is a necessary witness, not merely a potentially relevant witness.
- Evaluate whether the same facts can be proved through:
- the client,
- third-party witnesses,
- medical records,
- business records,
- notaries,
- staff,
- audio/video evidence, or
- the documents themselves.
- File the motion promptly after learning the basis.
- Request a hearing immediately.
- Create a record showing diligence in obtaining a prompt ruling.
- Present evidence, not just argument, on necessity and prejudice.
- Address the hardship and disruption arguments head-on.
For Opposing a Late Disqualification Motion
- Build a timeline showing when the movant learned the underlying facts.
- Collect correspondence, pleadings, disclosures, and attachments showing early notice.
- Document all litigation activity the movant pursued after learning the alleged basis for disqualification.
- Emphasize every delay in:
- filing the motion,
- requesting a hearing,
- setting the hearing,
- supplementing the motion, and
- obtaining a ruling.
- Show that the movant continued to seek merits relief while leaving counsel in place.
- Argue waiver under In re Nitla and Vaughan.
- Stress prejudice to the client from loss of counsel of choice.
- Show alternative witnesses or documentary proof that make counsel’s testimony unnecessary.
For Family Law Cases Involving Drafting Attorneys
- At intake, identify whether any disputed instrument was prepared by current counsel or counsel’s firm.
- Map which documents may become contested:
- deeds,
- trust instruments,
- premarital agreements,
- postmarital agreements,
- partition/exchange agreements,
- powers of attorney,
- beneficiary designations,
- business formation documents, and
- settlement documents.
- Assess early whether counsel may become a witness on:
- capacity,
- execution formalities,
- authenticity,
- intent,
- undue influence, or
- surrounding circumstances.
- Consider whether trial counsel and potential witness counsel should be separated at the outset.
- If staying in the case, preserve hardship and waiver defenses early.
- If moving to disqualify, do not wait for trial proximity to raise the issue.
For Preserving Error and Mandamus Positioning
- Obtain a signed ruling or other appealable mandamus record item.
- Ensure the record contains the notice timeline and litigation history.
- Make a clear objection if the trial court permits piecemeal supplementation after an evidentiary failure.
- Preserve arguments that legal argument is not evidence.
- Preserve arguments that no evidence establishes necessity, adversity, or actual prejudice.
- If disqualification is ordered, move quickly on mandamus because erroneous disqualification causes immediate and difficult-to-remedy harm.
Citation
In re Nicholas Hassan, No. 07-26-00292-CV, ___ S.W.3d ___, 2026 Tex. App. LEXIS ___ (Tex. App.—Amarillo July 9, 2026, orig. proceeding) (mem. op.).
Full Opinion
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