Spears v. Fourth Court of Appeals

• Citation: 797 S.W.2d 654
• Decision Date: 24 October 1990
• Docket Number: No. C-9782,C-9782
• Parties: The Honorable Carolyn H. SPEARS, Judge, and Jesse Casias, Relators, v. The FOURTH COURT OF APPEALS, Respondent.
• Court: Texas Supreme Court

Page 654

797 S.W.2d 654

The Honorable Carolyn H. SPEARS, Judge, and Jesse Casias, Relators, v. The FOURTH COURT OF APPEALS, Respondent.

No. C-9782.

Supreme Court of Texas.

Oct. 24, 1990.

Bernard W. Fischman, Bruce M. Miller, San Antonio, for relators.

Jim Mattox, Lynette Phillips, Austin, Jerry L. Shiely, San Antonio, Delmar L. Cain, Austin, for respondent.

OPINION

DOGGETT, Justice.

We consider whether an attorney and his firm are disqualified from representing a client against a state agency that previously employed another attorney now working for the firm. The court of appeals found that the trial court's refusal to order disqualification constituted an abuse of discretion and conditionally granted writ of mandamus. 790 S.W.2d 55. We conditionally grant the petition for writ of mandamus seeking to vacate the court of appeals' judgment.

Margaret Maisel served as chairman of the Industrial Accident Board (IAB) from August 1984 until October 1985. Nine days before her tenure ended, Jesse Casias allegedly sustained an injury at the IAB's San Antonio office when a chair collapsed underneath him while he attended a pre-hearing conference. William Treacy, the IAB's executive director, informed Maisel of the incident. Maisel testified that after receiving this report, she instructed Treacy to ensure the inspection of all chairs in the IAB's offices statewide.

After leaving government service, Maisel joined the law firm of Tinsman & Houser as a salaried attorney. There she undertook to represent Casias in his worker's compensation action for injuries sustained while attending the IAB hearing on his employer's behalf. Another attorney at that firm, Bruce Miller, represented Casias in his suit against the IAB under the Texas Tort Claims Act, Tex.Civ.Prac. & Rem.Code Ann. §§ 101.001-101.109 (Vernon 1986 & Supp.1990). In the latter action, from which this mandamus proceeding arises, the IAB denied receipt of notice under the Act essential to Casias's ability to bring suit. Id. § 101.101. The IAB maintains that it first learned of Maisel's knowledge relevant to the issue of notice when Treacy's deposition was taken in August 1989. The State nonetheless did not file a motion to disqualify Miller and the firm of Tinsman & Houser until January 2, 1990, six days before the scheduled trial date. ¹

The basis of the disqualification motion was two-fold. First, the State asserted that as statutory legal advisor to the IAB, see Tex.Rev.Civ.Stat.Ann. art. 8307, § 2(a) (Vernon Supp.1990), Maisel represented the IAB in connection with the Casias injury. The motion alleged that this alleged conflict of interest barred both Miller and his firm from representing Casias against Maisel's former client under Rules 1.09 and 1.10 of the Texas Disciplinary Rules of Professional Conduct. ² Second, the State contended that Maisel was a necessary witness at trial on the question of notice, and that Rule 3.08 of the Texas Disciplinary Rules of Professional Conduct (1989) thus required disqualification of Miller and his firm.

The Texas Disciplinary Rules of Professional Conduct were adopted by the State Bar of Texas to establish the "minimum standards of conduct below which no lawyer can fall without being subject to disciplinary action." Tex.Disciplinary Rules of Prof. Conduct preamble p 7 (1989). While the disciplinary rules are not controlling as standards governing motions to disqualify, see id., p 15, they have been viewed by the courts as guidelines that articulate considerations relevant to the merits of such motions. Ayres v. Canales, 790 S.W.2d 554, 556 n. 2 (Tex.1990, orig. proceeding); see NCNB Tex. Nat'l Bank v. Coker, 765 S.W.2d 398, 399 (Tex.1989, orig. proceeding). The parties have not offered any countervailing considerations as to why the disciplinary rules should not be similarly employed in this proceeding.

Disqualification is a severe remedy. NCNB Tex. Nat'l Bank v. Coker, 765 S.W.2d at 400. The courts must adhere to an exacting standard when considering motions to disqualify so as to discourage their use as a dilatory trial tactic. Id. at 399. Thus, the burden is on the movant to establish with specificity a violation of one or more of the disciplinary rules. See id. at 400. Mere allegations of unethical conduct or evidence showing a remote possibility of a violation of the disciplinary rules will not suffice under this standard. See id.

Based on the evidence offered by the State to establish a disqualifying conflict of interest, we cannot conclude that the trial court abused its discretion in refusing disqualification. ³ Much of the briefs of the parties and the court of appeals' opinion is devoted to the question of whether Maisel's prior representation of the IAB and the pending suit constitute "substantially related" matters mandating disqualification under Rule 1.09 of the Texas Disciplinary Rules of Professional Conduct. Yet, by its own terms, that rule is not applicable. The interpretive comments to that rule provide that:

Whether a lawyer, or that lawyer's present or former firm, is prohibited from representing a client in a matter by reason of the lawyer's successive government and private employment is governed by Rule 1.10 rather than by this Rule.

Tex. Disciplinary Rules of Prof. Conduct, Rule 1.09 comment 1 (1989).

Rule 1.10, the governing standard, prohibits representation of a private client by a former government attorney in two circumstances: (i) when the subsequent representation involves "a matter in which the lawyer participated personally and substantially as a public officer or employee," unless the government agency consents, or (ii) when the subsequent representation is adverse to a legal entity about whom the lawyer acquired "confidential government information" while a public officer or employee. Id. Rule 1.10(a) and (c). This disqualification does not, however, extend to other members of the firm if the former government attorney is screened from any participation in the matter and is not apportioned any of the resulting fee. ⁴ Id. (b) and (d).

In applying Rule 1.10, the court of appeals concluded that as the IAB's "legal advisor, Ms. Maisel is presumed to have participated personally and substantially in the case." 790 S.W.2d at 59. While the predecessor to Rule 1.10, barring private employment in a matter in which a former government attorney had "substantial responsibility," ⁵ might permit such a construction, the new rule does not. The rule applicable to successive government and private employment states explicitly that there must be personal and substantial participation. This "hands-on" involvement cannot be imputed based on title of office or the existence of statutory authority. The same is true on the question of whether Maisel had "confidential government information," as the rule operates only when the former government attorney has "actual as opposed to imputed knowledge." Tex.Disciplinary Rules of Prof. Conduct, Rule 1.10 comment 7 (1989). Although our state legislature may adopt "revolving door" statutes that impose a presumption of conflict of interest by barring former employees of state agencies from representing certain clients before that agency for a specified time period, see, e.g., Tex.Rev.Civ.Stat.Ann. art. 1446c § 6(i) (Vernon Supp.1990), there are none in effect applicable to Maisel.

The entire basis of the State's motion was Treacy's report of the chair collapse incident to Maisel nine days before she left the IAB, together with her instruction to check other chairs statewide. The trial court did not abuse its discretion in determining that this limited evidence presented...