in Re Daniel Lee Jackson, Jr. ( 2012 )

NO. 07-12-0186-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
JULY 9, 2012
______________________________
IN RE DANIEL LEE JACKSON, JR.
_________________________________
ORIGINAL PROCEEDING
ARISING FROM PROCEEDINGS BEFORE THE 72ND DISTRICT COURT OF
LUBBOCK COUNTY; NO. 2012-500,756;
HONORABLE RUBEN G. REYES, JUDGE PRESIDING
_______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
In this original proceeding, Relator, Daniel Lee Jackson, Jr., seeks to set aside
an order disqualifying his attorney of record, Nevill Manning, and the law firm of Field,
Manning, Stone, Hawthorne and Aycock. We deny the petition for writ of mandamus.
BACKGROUND
On February 6, 2012, the real party in interest, Susan Jackson, filed a petition for
divorce, seeking to terminate her fifteen year marriage to Daniel. Shortly after filing her
petition for divorce, Susan filed a motion seeking to disqualify Daniel's attorney and his
law firm. In her motion, Susan contended that Manning and his law firm were
disqualified to represent Daniel because a partner in the law firm, Mike Field, previously
represented her in her capacity as Independent Executrix of the estate of her uncle,
William W. Bryan, Jr., thereby gaining client information pertaining to the same or
substantially related matters. A hearing was held before the Honorable Ruben G.
Reyes, culminating in the contested order disqualifying both Manning and his law firm.
Seeking mandamus relief from this Court, Daniel asserts the trial court abused its
discretion in granting Susan's motion to disqualify because the client information
obtained as a result of Field's prior representation was (1) previously made public, (2)
stale, and (3) not substantially related to the present proceedings.
MANDAMUS STANDARD OF REVIEW
Mandamus relief is an extraordinary remedy. In re Southwestern Bell Telephone
Co., L.P., 235 S.W.3d 619, 623 (Tex. 2007) (orig. proceeding). "Mandamus issues only
to correct a clear abuse of discretion or the violation of a duty imposed by law when
there is no other adequate remedy by law.@ In re Prudential Ins. Co. of Am., 148
S.W.3d 124, 135-136 (Tex. 2004) (original proceeding); Walker v. Packer, 827 S.W.2d
833, 839 (Tex. 1992) (orig. proceeding) (quoting Johnson v. Fourth Court of Appeals,
700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding)). A trial court abuses its discretion
if it reaches a decision so arbitrary and unreasonable as to constitute a clear and
prejudicial error of law or if it clearly fails to correctly analyze or apply the law. In re
Cerberus Capital Mgmt., LP, 164 S.W.3d 379, 382 (Tex. 2005) (per curiam) (orig.
proceeding); Walker, 827 S.W.2d at 839. To satisfy the clear abuse of discretion
standard, the relator must show "that the trial court could reasonably have reached only
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one decision." Liberty Nat'l First Ins. Co. v. Akin, 927 S.W.2d 627, 630 (Tex. 1996)
(orig. proceeding) (quoting Walker, 827 S.W.2d at 840).
In determining whether there is no other adequate remedy, we consider whether
the benefits outweigh the detriments of mandamus review. In re Prudential Ins. Co.,
148 S.W.3d at 135-136. Because an appeal is inadequate when a trial court abuses its
discretion in disqualifying a party's attorney, In re Guar. Ins. Servs., 343 S.W.3d 130,
132 (Tex. 2011) (orig. proceeding); In re Cerberus Capital Mgmt., LP, 164 S.W.3d at
383, mandamus is an appropriate means of correcting an erroneously issued order of
disqualification. In re Sanders, 153 S.W.3d 54, 56 (Tex. 2004) (per curiam) (orig.
proceeding).
DISQUALIFICATION OF AN ATTORNEY
In disqualification cases, our analysis begins with the premise that
disqualification is a "severe remedy" which can result in immediate and perceptible
harm to a party, disrupt trial court proceedings, and deprive that party of the right to
have counsel of choice. Id. at 57; In re Nitla S.A. De C.V., 92 S.W.3d 419, 423 (Tex.
2002) (per curiam) (orig. proceeding). A trial court should be extremely judicious in
considering a disqualification motion because the procedure should not be used
tactically to deprive an opposing party of the right to be represented by the lawyer of his
or her choosing. In re Sanders, 153 S.W.3d at 57. Thus, "mere allegations of unethical
conduct or evidence showing a remote possibility of a violation of the disciplinary rules
will not suffice" to merit disqualification. Id. (quoting Spears v. Fourth Court of Appeals,
797 S.W.2d 654, 656 (Tex. 1990)).
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Although the Texas Disciplinary Rules of Professional Conduct were
promulgated as disciplinary rules rather than rules of procedural disqualification, courts
have recognized those rules as providing guidelines relevant to a disqualification
determination. Id. With that in mind, we note that Disciplinary Rule 1.09 states, in
relevant part:
(a) Without prior consent, a lawyer who personally has formerly
represented a client in a matter shall not thereafter represent another
party in a matter adverse to the former client;
(1) in which such other person questions the validity of the lawyer's
services or work product for the former client; or
(2) if the representation in reasonable probability will involve a
violation of Rule 1.05;
(3) if it is the same or a substantially related matter.
(b) Except to the extent authorized by Rule 1.10, when lawyers are . . .
members of or associated with a firm, none of them shall knowingly
represent a client if any one of them practicing alone would be prohibited
from doing so by paragraph (a).
Tex. Disciplinary R. Prof'l Conduct 1.09(a), reprinted in Tex. Gov't Code Ann., tit. 2,
subtit. G app A (West 2011) (Tex. State Bar R. art. X, § 9). Furthermore, we note that
Disciplinary Rule 1.05 states, in relevant part:
(a) "Confidential information" includes . . . "unprivileged client
information." . . . "Unprivileged client information" means all information
relating to a client or furnished by the client, other than privileged
information, acquired by the lawyer during the course of or by reason of
the representation of the client.
(b) Except as permitted by paragraphs (c) and (d) [not applicable here], or
as required by paragraphs (e) and (f) [not applicable here], a lawyer shall
not knowingly:
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(2) Use confidential information of a client to the disadvantage of the
client unless the client consents after consultation.
Tex. Disciplinary R. Prof'l Conduct 1.05.
The mere fact that a lawyer has previously represented the complaining client
does not itself compel disqualification. See Yorkshire v. Seger, 279 S.W.3d 755, 775
(Tex.App.--Amarillo 2007, no pet.) (holding that even if challenged counsel has
committed a disqualifying act, the party requesting disqualification must demonstrate
that the disqualified counsel's conduct caused actual prejudice). Disqualification is only
appropriate if the representation in reasonable probability will involve a violation of Rule
1.05 and if the previous representation and the current representation involve the same
or a substantially related matter. Metropolitan Life Insurance Co. v. Syntek Finance
Corp., 881 S.W.2d 319, 320 (Tex. 1994).
ANALYSIS
Where a motion to disqualify an attorney states multiple grounds for
disqualification, we will not disturb a trial court's order granting that motion so long as
any ground of disqualification is supported by the record. Here, Susan's motion
contends that Manning and his law firm are disqualified to represent Daniel because the
law firm previously represented the estate of her uncle, William W. Bryan, Jr., through
which she inherited certain property, as well as representing her in her capacity as
Independent Executrix of that estate, thereby gaining confidential client information
pertaining to her separate property estate, which she contends is a matter substantially
related to the underlying divorce proceeding.
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While Daniel asserts that the information acquired by Field during the course of
his prior representation has entered the "public domain," he also recognizes that such
information is still protected "confidential information." Accordingly, he recognizes that
the essential inquiry is whether the information is substantially related to the pending
divorce proceeding. In that regard, he argues that the information is so remote in time
and dissimilar in content that the trial court erred in finding a substantial relationship.
In Syntek, while reviewing on direct appeal the trial court's denial of a motion to
disqualify opposing counsel, the Texas Supreme Court discussed the "substantially
related matter" requirement of Rule 1.09(a)(3), stating that in order to satisfy that
requirement a movant must prove the facts of the previous representation are so related
to the facts involved in the pending litigation "that a genuine threat exists that
confidences revealed to former counsel will be divulged to a present adversary."
Syntek, 881 S.W.2d at 321. See also NCNB Tex. National Bank v. Coker, 765 S.W.2d
398, 400 (Tex. 1989) (applying former Texas Code of Professional Responsibility, Rules
Governing the State Bar of Texas, art. X, § 9, DR 2-103(D)(2)). Here, the firm's
attorney-client relationship was not merely with members of Susan's family, or with
Susan as executrix of an estate, it also extended to Susan herself. The evidence
presented during the disqualification hearing shows a long-term attorney-client
relationship between Susan and the firm where knowledge and understanding of the
nature and extent of Susan's estate were integral parts of that representation.
Furthermore, the extent of Susan's property holdings, including her separate property
estate, is a matter the trial court will have to consider in awarding a fair and equitable
division of Susan and Daniel's community estate.
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In reviewing a trial court's decision to disqualify counsel we may not substitute
our judgment for that of the trial court and may not disturb the trial court's decision
unless it is shown to be arbitrary and unreasonable. In re Sanders, 153 S.W.3d at 57.
In that regard, a trial court abuses its discretion if it fails to correctly analyze or apply the
law. Id. Because we find Judge Reyes's decision to disqualify Manning, and the law
firm of Field, Manning, Stone, Hawthorne and Aycock was neither arbitrary nor
unreasonable, we deny Daniel's request for relief.
CONCLUSION
Based on the standard articulated in Syntek, having examined and fully
considered the petition for writ of mandamus and the response thereto, we hold that it
was not an abuse of discretion for the trial court to conclude that the former and current
proceedings involved a substantially related matter, to-wit: Susan's separate property.
Accordingly, without hearing oral argument, the petition for writ of mandamus is denied.
See Tex. R. App. P. 52.8(a).
Patrick A. Pirtle
Justice
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