In re Murphy, No. 14-08-01017-CV (Tex. App. 3/5/2009)
| Decision Date | 05 March 2009 |
| Docket Number | No. 14-08-01017-CV.,14-08-01017-CV. |
| Parties | IN RE MICHELLE E. MURPHY, Relator. |
| Court | Texas Court of Appeals |
Petition for Writ of Mandamus Conditionally Granted.
Panel consists of Justices YATES, SEYMORE, and BOYCE.
In this original proceeding, relator, Michelle E. Murphy, seeks a writ of mandamus ordering the respondent, the Honorable Gladys Burwell, presiding judge of the Probate Court of Galveston County, to vacate her October 6, 2008 order disqualifying relator as counsel. We conditionally grant the writ.
The underlying litigation involves a dispute over the administration of the estate of James Morelock. Relator Michelle E. Murphy is the decedent's daughter, and real party in interest, Kari Strain Morelock, is his surviving spouse. On August 8, 2007, Murphy filed an application to serve as administrator of the decedent's estate. On August 27, 2007, Morelock filed an application to probate the decedent's will. On January 24, 2008, Morelock non-suited her application to probate the will, and, on April 4, 2008 filed a competing application to serve as administrator of the decedent's estate. The underlying action in this case is the dispute between Murphy and Morelock as to who should be appointed administrator of the decedent's estate.
On June 4, 2008, Morelock filed a motion to disqualify Murphy as counsel on the grounds that (1) Murphy had previously represented Morelock and the decedent in the preparation of a survivorship agreement and (2) local rules and Texas case law prohibit an individual acting pro se to administer an estate. Murphy responded to Morelock's motion alleging (1) Morelock waived disqualification because she delayed in filing the motion until ten months after Murphy filed her application to be appointed as administrator, (2) Murphy did not represent Morelock in the preparation of the survivorship agreement, (3) no confidential information was disclosed in preparation of the agreement, and (4) the local rule does not apply to Murphy.
The respondent held a hearing on Morelock's motion and found that Morelock did not waive her objection and that Murphy was disqualified as counsel both as a result of her previous representation of Morelock and because she is seeking letters of administration. At the hearing, both parties testified about a survivorship agreement that Murphy prepared prior to the decedent's death. Morelock testified that she and the decedent had not executed wills and were concerned about property division following one or the other's death. Murphy suggested that they enter into a survivorship agreement, which would address to whom the property would pass upon the death of either spouse. Morelock testified that she divulged confidential financial information to Murphy to facilitate Murphy's preparation of the agreement. Morelock, the decedent, and Murphy were present when the agreement was signed, and Murphy represented both parties to the agreement. Morelock further testified that Murphy's earlier representation of her was so related to the administration of the estate that there was a genuine threat that the confidences she revealed would be disclosed.
Murphy contradicted Morelock's testimony, stating that in preparing the survivorship agreement, she represented only her father, the decedent. She disputed that Morelock divulged confidential information, testifying that all of the information used in preparation of the agreement was public record. Although the agreement affected both parties, she prepared it at the request of the decedent. She obtained the information to prepare the agreement by searching county records.
With regard to the issue of waiver, Morelock testified that the conflict did not arise until she filed for letters of administration on April 4, 2008. She further testified that she was not aware of her right to file a motion to disqualify counsel until she retained her current counsel approximately four weeks before the motion was filed.
On October 6, 2008, the respondent issued an order granting the motion to disqualify finding that Murphy "previously represented Kari Strain Morelock in a matter substantially related to the proceedings at bar." The respondent further held that Murphy "is disqualified from serving as counsel for herself in the capacity of applicant as administrator." Murphy filed this mandamus proceeding challenging the trial court's order of disqualification.
Mandamus is an extraordinary remedy to correct a trial court's abuse of discretion that cannot be remedied through standard appellate channels. Walker v. Packer, 827 S.W.2d 833, 840-44 (Tex. 1992) (orig. proceeding). Appeal is not an adequate remedy for a trial court's erroneous disqualification of a party's chosen counsel. In re Butler, 987 S.W.2d 221, 224 (Tex. App.-Houston [14th Dist.] 1999, orig. proceeding). Because disqualification is a severe remedy, the courts must adhere to an exacting standard so as to discourage the use of a motion to disqualify as a dilatory trial tactic. Spears v. Fourth Court of Appeals, 797 S.W.2d 654, 656 (Tex. 1990) (orig. proceeding). The burden is on the movant to establish with specificity a violation of one or more of the disciplinary rules. See id. Mere allegations of unethical conduct or evidence showing a remote possibility of a violation of the disciplinary rules will not suffice under this standard. Id.
To show an abuse of discretion with respect to factual issues, the party requesting mandamus relief must establish that the trial court could have reached but one decision, given the facts existing and law applicable to the case. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding). The trial court's decision may be disturbed by mandamus only if it is shown to be arbitrary or unreasonable. Walker, 827 S.W.2d at 839; Butler, 987 S.W.2d at 226.
Murphy challenges the respondent's order on the following grounds: (1) Morelock waived her right to disqualify counsel by waiting too long to file her motion, (2) the trial court's order does not recite evidence of specific similarities between the administration of the estate and preparation of the survivorship agreement, (3) there is no conflict of interest because relator did not represent Morelock in preparing of the survivorship agreement, and (4) the Galveston County local policy does not apply in this instance.
Murphy contends that Morelock waived her complaint about a conflict of interest by waiting over nine months to object to Murphy representing herself as the administrator of the estate. Waiver of a motion to disqualify is determined by the filing of the motion. A party who does not file a motion to disqualify opposing counsel in a timely manner waives the complaint. Vaughan v. Walther, 875 S.W.2d 690 (Tex. 1994) (orig. proceeding). In determining whether a party has waived the complaint, the court will consider the length of time between when the conflict became apparent to the aggrieved party and when the aggrieved party filed the motion to disqualify. See Wasserman v. Black, 910 S.W.2d 564, 568 (Tex. App.-Waco 1995, orig. proceeding). The court should also consider any other evidence which indicates the motion is being filed not due to a concern that confidences related in an attorney-client relationship may be divulged but as a dilatory trial tactic. Spears, 797 S.W.2d at 656.
Morelock filed her motion to disqualify counsel on June 4, 2008. Murphy contends that the conflict became apparent to Morelock on August 8, 2007 when Murphy filed for letters of administration. Morelock testified that she did not file a completing claim for administration until April 4, 2008.
The trial court heard evidence from both parties and determined that Morelock did not waive her right to file the motion. The trial court's implied finding of no waiver is supported by Morelock's testimony that the conflict did not become apparent until she filed a competing claim for letters of administration. Factual determinations by the trial court may not be disturbed by mandamus review if those determinations are supported by sufficient evidence. See Mendoza v. Eighth Court of Appeals, 917 S.W.2d 787, 790 (Tex. 1996) (orig. proceeding). After reviewing the record, we conclude the trial court's finding is supported by sufficient evidence. The trial court did not abuse its discretion in finding that Morelock did not waive her right to seek disqualification. Her motion was filed in June, just two months after she filed her competing letters of administration.
Murphy further argues that the trial court abused its discretion in finding a conflict of interest because (1) she did not represent Morelock in preparation of the survivorship agreement and (2) even if a prior attorney-client relationship existed, the two matters are not substantially related so as to require disqualification of counsel.
The Texas Rules of Professional Conduct provide guidance in determining whether an attorney should be disqualified from representing a party in litigation. See Henderson v. Floyd, 891 S.W.2d 252, 253 (Tex. 1995) (orig. proceeding). Rule 1.09 of the Texas Disciplinary Rules of Professional Conduct is the applicable rule and provides in part:
(a) Without prior consent, a lawyer who personally has formally represented a client in a matter shall not thereafter represent another person in a matter adverse to the former client: * * * (2) if the representation in reasonable probability will involve a violation of Rule 1.05; or
(3) if it is the same or a substantially related matter.
Tex. Disciplinary R. Prof'l Conduct 1.09, reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G app. A (Vernon Supp. 2008) .
Rule 1.05,...
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