                                   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:

                                               ***

                                                 4
          (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.



                                             5
       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.


                                               6
       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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