Deny Writ and Opinion Filed September 2, 2014




                                         S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-14-00947-CV

                    IN RE COLONY INSURANCE COMPANY, Relator

                 Original Proceeding from the 429th Judicial District Court
                                   Collin County, Texas
                           Trial Court Cause No. 429-00871-2014

                             MEMORANDUM OPINION
                         Before Justices FitzGerald, Francis, and Lewis
                                 Opinion by Justice FitzGerald
       Colony Insurance Company filed this petition for writ of mandamus requesting that the

Court order the trial court to vacate its order denying Colony’s motion to disqualify counsel for

real party in interest Kish, LLC d/b/a Quality Towing based on rule 1.09(a)(3) and 1.09(a)(2) of

the Texas Disciplinary Rules of Professional Conduct.

       It is undisputed that counsel for Quality Towing has twice represented Colony in the past.

In the first case, a subrogation case between Colony and another insurer, Quality Towing’s

current counsel represented Colony in a declaratory judgment action seeking a determination

whether Colony had a duty under a policy issued to a signage subcontractor to defend or

indemnify the general contractor in a wrongful death case related to an accident in a construction

zone. In the second case, Quality Towing’s current counsel represented Colony in a declaratory

judgment action seeking a determination whether Colony had a duty under a professional

liability policy to defend or indemnify an attorney against malpractice claims brought by a
former client. This suit involves the question whether Colony has a duty to defend or indemnify

Quality Towing for personal injuries arising from a dog bite. In each case, the basis of Colony’s

denial of any duty to defend or indemnify differed. In the first case, Colony contended that it

lacked a duty to defend or indemnify because the accident at issue was not caused by the

negligence of its insured. In the second case, Colony argued that it had no obligation to defend

or indemnify because the claims against the attorney arose prior to the inception of the policy or

were excluded by the terms of the policy. In this case Colony contends that it is not obligated to

defend or indemnify because the policy was cancelled for non-payment of premiums.

             Because disqualification is a severe remedy, courts must adhere to exacting standards

when considering motions to disqualify so that they are not used as a tactical device.1 As the

Texas Supreme Court has noted, to allow the rules of disciplinary procedure “to dictate a

complete bar to any representation of a former client would not be practical.”2 For that reason,

the rules of disciplinary procedure3 do not absolutely bar a lawyer from ever undertaking an

engagement adverse to a former client.

             Rule 1.09(a)(3) prohibits a lawyer from representing an adverse party in “the same or a

substantially related matter.”4                  Under rule 1.09(a)(3), the party moving to disqualify an attorney

must prove: (1) the existence of a prior attorney-client relationship; (2) in which the factual

matters involved were related to the facts in the pending litigation; and (3) a genuine threat that

confidences revealed to his former counsel will be divulged to his present adversary.5 To be


     1
         Spears v. Fourth Court of Appeals, 797 S.W.2d 654, 656 (Tex. 1990) (orig. proceeding).
     2
         NCNB Tex. Nat’l Bank v. Coker, 765 S.W.2d 398, 399 (Tex. 1989) (orig. proceeding).
     3
       Although the disciplinary rules are not controlling as standards governing motions to disqualify, they serve as guidelines that “articulate
considerations relevant to the merits of such motions.” Spears, 797 S.W.2d at 656.
     4
       TEX. DISCIPLINARY RULES PROF’L CONDUCT R. 1.09(a)(3), reprinted in TEX. GOV’T CODE ANN. tit. 2, subtit. G, app. A (West 2013)
(TEX. STATE BAR R. art. X, § 9).
     5
         In re Butler, 987 S.W.2d 221, 224 (Tex. App.—Houston [14th Dist.] 1999, orig. proceeding).



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entitled to disqualification under Rule 1.09(a)(3), the moving party must establish “a

preponderance of the facts indicating a substantial relation between the two representations.”6 In

other words, “[t]he moving party must prove the existence of a prior attorney-client relationship

in which the factual matters involved were so related to the facts in the pending litigation that it

creates a genuine threat that confidences revealed to his former counsel will be divulged to his

present adversary.”7                 A superficial resemblance between issues in a case is not enough to

constitute a substantial relationship.8

             Although rule 1.09(a)(2) can provide a basis for disqualification independent of rule

1.09(a)(3), the prohibition of rule 1.09(a)(2), “largely overlaps the prohibition contained in Rule

1.09(a)(3).”9           Rule 1.09(a)(2) prohibits representation adverse to a former client “if the

representation in reasonable probability will involve a violation of Rule 1.05.”10 Rule 1.05

requires the protection both of privileged information and “all information relating to a client or

furnished by the client . . . acquired by the lawyer during the course of or by reason of the

representation of the client.”11 Before a trial court may disqualify a lawyer pursuant to Rule

1.09(a)(2), the court must find a reasonable probability that some aspect of rule 1.05 will be




     6
         Coker, 765 S.W.2d at 400.
     7
        Id.; accord In re EPIC Holdings, Inc., 985 S.W.2d 41, 51 (Tex. 1998) (orig. proceeding) (“We have held that two matters are
‘substantially related’ within the meaning of Rule 1.09 when a genuine threat exists that a lawyer may divulge in one matter confidential
information obtained in the other because the facts and issues involved in both are so similar.”).
     8
         J.K. & Susie L. Wadley Research Inst. & Blood Bank v. Morris, 776 S.W.2d 271, 278 (Tex. App.—Dallas 1989, orig. proceeding).
     9
      In re Texas Windstorm Ins. Ass'n, 417 S.W.3d 119, 139 (Tex. App.—Houston [1st Dist.] 2013, orig. proceeding) (citing TEX.
DISCIPLINARY RULES PROF'L CONDUCT R. 1.09 cmts. 4 & 4B).
     10
          TEX. DISCIPLINARY R. PROF’L CONDUCT R. 1.09(a)(2).
     11
          TEX. DISCIPLINARY R. PROF’L CONDUCT R. 1.05(a).



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violated.12 Whether such a probability exists in any given case will be a question of fact.13

Factual determinations by the trial court may not be disturbed by mandamus review.14

           Ordinarily, to obtain mandamus relief, a party must show both that the trial court has

clearly abused its discretion and that it has no adequate appellate remedy.15 Based on the

evidence before the trial court, we cannot conclude that the trial clearly abused its discretion.

Because Colony has failed to establish its right to mandamus relief, we DENY the petition for

writ of mandamus.16




140947F.P05
                                                                           /Kerry P. FitzGerald/
                                                                           KERRY P. FITZGERALD
                                                                           JUSTICE




   12
        In re Hoar Constr., L.L.C., 256 S.W.3d 790, 800 (Tex. App.—Houston [14th Dist.] 2008, orig. proceeding).
   13
        TEX. DISCIPLINARY RULES PROF'L CONDUCT R. 1.09 cmt. 4.
   14
        See Mendoza v. Eighth Court of Appeals, 917 S.W.2d 787, 790 (Tex. 1996) (orig. proceeding).
   15
        In re Prudential Ins. Co., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding).
   16
        TEX. R. APP. P. 52.8(a).



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