                              Fourth Court of Appeals
                                     San Antonio, Texas

                                   DISSENTING OPINION
                                        No. 04-13-00050-CV

               IN RE CMH HOMES, INC. and Vanderbilt Mortgage and Finance, Inc.

                                  Original Mandamus Proceeding 1

Opinion by: Karen Angelini, Justice
Dissenting Opinion by: Rebeca C. Martinez, Justice

Sitting:          Karen Angelini, Justice
                  Rebeca C. Martinez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: June 5, 2013

           The majority decides that based on an irrebuttable presumption of shared confidences,

Carrillo’s representation of Duval County in its suit against CMH Homes requires that Rumley

and Gutierrez (the “Firms”) also be disqualified. The majority opinion relies on two premises:

that Carrillo’s name appearing on a pleading and/or motion constitutes evidence of

representation adverse to his former client, and that an irrebuttable presumption applies to

disqualify any firm appearing as co-counsel of record along with a disqualified attorney.

Because I believe that the majority fails to properly analyze the law governing disqualification, I

respectfully dissent.




1
  This proceeding arises out of Cause No. DC-12-09, styled Duval County, Texas v. Vanderbilt Mortgage and
Finance, Inc., CMH Homes, Inc., Bruce Robin Moore, Jr., and Benjamin Joseph Frazier, pending in the 229th
Judicial District Court, Duval County, Texas, the Honorable Ana Lisa Garza presiding.
Dissenting Opinion                                                                   04-13-00050-CV


Mandamus Standard of Review

        As a preliminary matter, I note we are required to afford the trial court deference when

fact determinations are made below, as they were in this case. In reviewing the trial court’s

resolution of factual issues or matters committed to its discretion, we may not substitute our

judgment for that of the trial court. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig.

proceeding). Thus, we cannot set aside the trial court’s finding unless it is clear from the record

that the trial court could have reached only one decision. In re Nitla S.A. de C.V., 92 S.W.3d

419, 422 (Tex. 2002) (orig. proceeding) (per curiam). Even if we would have decided the issue

differently, we cannot disturb the trial court’s decision unless it is shown to be arbitrary and

unreasonable. Walker, 827 S.W.2d at 840.

“Representation”

        Initially, I disagree with the majority’s conclusion that Carrillo represented Duval County

in a matter adverse to CMH. Rule 1.09(a) provides that it is improper for a lawyer who formerly

represented a client in a matter from later representing another person in a matter adverse to the

former client if there is a reasonable probability that confidential information will be revealed or

if it is the same or a substantially related matter. See TEX. DISCIPLINARY R. PROF’L CONDUCT

1.09(a). The record before us contains no evidence of a contract between Carrillo and Duval

County creating an attorney-client relationship mutually intended to pursue the client’s claims

against CMH. See Vinson & Elkins v. Moran, 946 S.W.2d 381, 405 (Tex. App.—Houston [14th

Dist.] 1997, writ dism’d by agr.) (attorney-client relationship is contractual). Nor is there any

evidence in the record of a “mutual meeting of the minds” between Carrillo and Duval County

implying an attorney-client relationship with respect to the CMH litigation. See Tanox, Inc. v.

Akin, Gump, Strauss, Hauer & Feld, LLP, 105 S.W.3d 244, 254 (Tex. App.—Houston [14th



                                                -2-
Dissenting Opinion                                                                                    04-13-00050-CV


Dist.] 2003, pet. denied) (attorney-client relationship may be implied where there is a meeting of

the minds to form such a relationship). Instead, the majority heavily relies on the fact that

Carrillo, in his role as the elected County Attorney, 2 negotiated on behalf of Duval County a

contract retaining the Firms to pursue Duval County’s claims against CMH. 3 In disregard of the

trial court’s findings, the majority emphasizes this negotiation alone as evidence that Carrillo

was “representing [Duval County] in a matter adverse to [CMH].” It further states that Carrillo

failed to show he did not know his name was included as attorney of record on the Original

Petition filed by the Firms.

         While hesitant to adopt Relators’ proposition urged at oral argument that the listing of

Carrillo’s name on the original petition and his motion to withdraw constitute a “judicial

admission” of representation, the majority opinion explicitly concludes that Carrillo’s name

appearing as attorney of record and signature on his motion constitute significant evidence from

which the trial court could only find he represented the County. I disagree that Carrillo’s

appearance on the Original Petition or signature on the motion to withdraw is conclusive

evidence of representation. First, pleadings are not evidence, even when verified. See Laidlaw

Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995). Second, there is

no authority for the proposition that a signature on a motion constitutes a judicial admission. To

2
  The majority fails to recognize the distinction between government lawyer and private lawyer and the troubling
impact its holding will effectively have on governmental employees, such as county attorneys and prosecutors, who
are statutorily allowed to practice law while performing a role in government. See generally Scott A. Durfee,
Guessing Game: Government Lawyers and Their Relationship to the Disciplinary Rules, 55 THE ADVOCATE 41
(2011); see also TEX. DISCIPLINARY R. PROF’L CONDUCT preamble ¶ 13 (emphasis added) (“The responsibilities of
government lawyers, under various legal provisions, including constitutional, statutory and common law, may
include authority concerning legal matters that ordinarily reposes in the client in private client-lawyer
relationships.”).
3
  The majority concludes that in the act of embarking on negotiations with the Firms, Carrillo acted adverse to his
former client CMH, “and the presumption attached.” This is confusing, since a presumption of shared confidences
“arises” from the attorney-client relationship between the client (the County) and its attorney (Carrillo), and does not
“attach” to create an attorney-client relationship between the County and Carrillo from Carrillo’s acts [negotiating]
with a third party (the Firms).


                                                         -3-
Dissenting Opinion                                                                                04-13-00050-CV


the contrary, the signature of an attorney is not the equivalent of a verification. See In re

Valliance Bank, No. 02-12-00255-CV, 2012 WL 5512455, at *3 (Tex. App.—Fort Worth Nov.

15, 2012, orig. proceeding) (noting that attorney’s signature on motion merely certifies that he

has read the document and that to the best of his knowledge, information, and belief the

instrument is not groundless and not brought in bad faith or for the purpose of harassment;

signature does not represent the facts to be true and based upon personal knowledge); Luxenberg

v. Marshall, 835 S.W.2d 136, 140 & n.3 (Tex. App.—Dallas 1992, orig. proceeding); see also

TEX. R. CIV. P. 13. The motion to withdraw 4 was not an admission that Carrillo represented

Duval County in this matter, but a mere formality required of Carrillo upon discovering that his

name was listed on the pleadings unbeknownst to him. See Carpet Services, Inc. v. George A.

Fuller Co. of Tex., Inc., 802 S.W.2d 343, 344-45 (Tex. App.—Dallas 1990), aff’d, 823 S.W.2d

603 (Tex. 1992) (pleading is addressed to the court and party should be free to address court

“without being held in terrorem”). The leap taken to reach the conclusion of “representation” is

no less long than the leap taken to determine that Carrillo was “associated with” the Firms.

Association

        Having “presumed” that Carrillo represented the County in its suit against CMH, the

majority next relies solely on a definition from Webster’s Dictionary to hold that Carrillo was

“associated” with the Firms. See TEX. DISCIPLINARY R. PROF’L CONDUCT 1.09(b) (“[W]hen

lawyers are or have become 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



4
 Although Carrillo’s name is listed on the Original Petition, CMH did not file its motion to disqualify until after
Carrillo filed his motion to withdraw. CMH then argued to the trial court that since Rule 13 mandates “substantive
consultations” between co-counsel prior to filing suit, “surely” Carrillo shared confidential information with the
Firms and that Carrillo “agreed to work in concert with” the Firms. Presumably, the majority recognizes that Rule
13 is inapposite since Carrillo’s name and signature (as Duval County Attorney) appear only on his motion to
withdraw.

                                                       -4-
Dissenting Opinion                                                                   04-13-00050-CV


paragraph (a)).”     The majority conclusively holds that “any lawyer with which Carrillo is

associated” is disqualified, extending to those “closely connected (as in function or officer) with

another.” This would necessarily include the Firms, the majority reasons, since presumably they

are individuals “working together on a case or issue regardless of their actual status as a member

of the firm, of-counsel or co-counsel” and, to hold otherwise would conflict with “the plain and

common meaning of ‘associate with.’” By the majority’s own reasoning, it would logically

follow that “association” would be determined by whether Carrillo and the Firms “worked

together on a case or issue,” regardless of whether they were listed as “co-counsel.” Again,

failing to defer to the trial court’s findings, the majority applies an irrebuttable presumption

where none is recognized.

        An irrebuttable presumption is recognized to address a client’s possible concerns that its

lawyer may share its confidences with another which cannot be readily proven. See In re EPIC

Holdings, Inc., 985 S.W.2d 41, 49 (Tex. 1998) (orig. proceeding). Here, no argument is made,

nor does the majority address, the need to protect a reasonable concern by a party seeking

disqualification that it would be unable to prove whether confidences were disclosed. The Texas

Supreme Court has not recognized an irrebuttable presumption of client confidences between co-

counsel. In In re American Home Products, the Court applied a rebuttable presumption, placing

the burden on the “party seeking disqualification [to] first demonstrate that there were

‘substantive’ conversations between disqualified counsel and co-counsel, joint preparation for

trial by those counsel, or the apparent receipt by co-counsel of confidential information.” In re

American Home Products Corp., 985 S.W.2d 68, 81 (Tex. 1998) (orig. proceeding). Relying on

In re American, CMH sought to discover whether Carrillo and the Firms jointly prepared for trial

or had “substantive” discussions regarding the case, but failed to present the trial court with more



                                                -5-
Dissenting Opinion                                                                                     04-13-00050-CV


than speculation. 5 Id. (discovery available “without inquiring into the substance of the work that

has been done or of discussions between co-counsel”).

         In conclusion, the issue of whether Carrillo represented the County is a question of fact. I

believe the majority substitutes its findings for that of the trial court. We must give deference to

the trial court’s explicit findings of fact on the issues of representation and disclosure. More

importantly, mandamus is not appropriate where the trial court did not clearly abuse its

discretion or commit clear and prejudicial error in law. See Walker, 827 S.W.2d at 839. The

record does not reflect that Carrillo represented the County in its suit against CMH or that

Carrillo shared confidential information with the Firms. Even assuming the trial court erred in

finding to the contrary, there is no precedent recognizing an irrebuttable presumption of shared

confidences between co-counsel.              Therefore, I cannot agree that the trial court abused its

discretion in denying the motion to disqualify Rumley and Gutierrez. Accordingly, I would deny

the petition for writ of mandamus.


                                                            Rebeca C. Martinez, Justice




5
  Relators fail to present any evidence to substantiate their assertions that Carrillo “surely had substantive
consultations with them prior to withdrawing;” that Carrillo “agreed to work in concert with” the Firms; that Carrillo
“join(ed) his prior counsel to sue his former client;” and that Carrillo and the Firms “in all likelihood” entered into a
contingency contract. CMH posited that a contingency contract was negotiated, but offered no discoverable
evidence of a written agreement signed by the County authorizing joint representation between Carrillo and the
Firms. See TEX. DISCIPLINARY R. PROF’L CONDUCT 1.04(d), 1.04(f)(1)-(2) (client must consent in writing to the
terms of an arrangement for the division of a fee between lawyers who are not in the same firm).

                                                          -6-
