In re Daniel Lee Jackson, Jr.--Appeal from of County (Majority)

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State: Texas

Court: Texas Northern District Court

Docket No: 07-12-00186-CV

Case Date: 07/09/2012

Preview: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. proceeding). DISQUALIFICATION OF AN ATTORNEY In disqualification cases, our analysis begins with the premise that In re Sanders, 153 S.W.3d 54, 56 (Tex. 2004) (per curiam) (orig.

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,

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