Petition for Writ of Mandamus Denied and Memorandum Opinion filed
August 25, 2016.




                                     In The

                     Fourteenth Court of Appeals

                               NO. 14-16-00473-CV



                     IN RE JOSE QUINTANILLA, Relator


                          ORIGINAL PROCEEDING
                            WRIT OF MANDAMUS
                               507th District Court
                              Harris County, Texas
                        Trial Court Cause No. 2015-76308

                         MEMORANDUM OPINION

      On November 8, 2015, relator Jose Quintanilla retained attorney Michael G.
Busby, Jr. and his firm, Busby & Associates, P.C. (collectively “Busby”), to
represent him in the underlying divorce suit. Relator’s wife, Silva Garcia, hired
Busby three days later, on November 11, 2015. Subsequently, Busby returned
Garcia’s retainer and informed her that he could not represent her because he
already represented relator.
       On December 22, 2015, Busby filed an original petition for divorce on
behalf of relator. Garcia filed her answer on April 1, 2016, and a motion to
disqualify Busby on April 29. On May 12, 2016, Associate Judge Amy Perez
disqualified Busby. At relator’s timely request, District Judge Alyssa Lemkuil
held a de novo hearing on May 26. Judge Lemkuil orally granted the motion to
disqualify, and she signed the disqualification order on June 10, 2016.

       On June 14, 2016, relator filed a petition for writ of mandamus in this court.1
In the petition, relator asks this court to compel Judge Lemkuil to set aside her
June 10, 2016 order granting the motion to disqualify his attorney. We deny the
petition.

                                        BACKGROUND

       Evidence was presented at the disqualification hearing that Silva Garcia met
with a legal assistant, Mitan Sudatu, at Busby’s law firm office three days after
relator had retained the firm. 2 Busby was not present at the consultation and he did
not meet Garcia.

       Garcia brought to her consultation a copy of a 2013 divorce decree
containing QDRO information, a warranty deed for the house, and a list of debts.
Garcia and Sudatu went over the inventory during the meeting. Garcia and Sudatu
discussed the fact that relator had been served in 2013, but that he did not respond.




       1
           See Tex. Gov’t Code Ann. § 22.221 (West 2004); see also Tex. R. App. P. 52.
       2
          Julie Sanchez, a senior paralegal at the firm, testified that Garcia also met with an
attorney, Paul Cazada, who was the only attorney working in the office the day Garcia was there.
Garcia did not remember meeting with anyone other than Sudatu.
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Sudatu told Garcia that the nearly eight-year separation of Garcia and relator
“would be part of what they used in order to go in and get their [sic] divorce.”

      Garcia filled out an application “[t]hat was kind of extensive,” but she did
not remember filling out any other papers. Sudatu told Garcia that the firm would
start working on the case in two or three days. Garcia paid the firm a $2,500
retainer on November 11, 2015.

      The firm discovered the conflict in its representation of Garcia and relator
three days after Garcia had met with Sudatu, but attempts to contact Garcia were
unsuccessful. Garcia called the firm on November 25, 2015, because she had not
heard from anyone there. Someone at the firm informed Garcia that her retainer
would be returned due to a conflict of interest because relator had already hired the
firm to represent him in the divorce.

      Garcia testified that she asked about her files:

      I’m concerned that my personal information is there and they’re
      representing both of us. She told me that it had been destroyed. And
      I was just livid because — I’m like — how can I trust that it’s been
      destroyed? Who — when did they find this out? When was anybody
      going to contact me to let me know this was going on?

      Garcia did not know whether the firm had already worked on the case for
her. The firm did not return the documents she provided to it. Garcia believed that
Busby had possession of her information, which she characterized as “attorney-
privileged information,” because she gave it to Sudatu during the meeting at the
firm’s office. Garcia signed the employment contract, but it was not countersigned
by any attorney at the firm.


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      In his review of the file, Busby saw only the intake form. According to
Busby, either the other documents Garcia claimed she gave the firm would have
been destroyed by Sudatu or Garcia was mistaken about having provided
documents to the firm. Busby asserted that he did not have the documents that
Garcia claimed created a conflict.

      In his petition for writ of mandamus, relator contends that the trial court
abused its discretion by disqualifying Busby because (1) Garcia did not show that a
specific disciplinary ruled was violated, and merely alleging of a violation of the
disciplinary rules is insufficient to support disqualification; (2) Garcia did not show
that Busby’s firm possessed confidential information or that she had been harmed;
(3) there is no reasonable probability that the firm’s employees will reveal Garcia’s
confidential information because they have no knowledge of, or access to, such
information; (4) the firm withdrew from disqualification immediately; (5) the trial
court did not consider alternatives to disqualification; and (6) Garcia did not move
for disqualification in a timely manner.

                         MANDAMUS STANDARD OF REVIEW

      Mandamus is appropriate when the relator demonstrates that (1) the trial
court clearly abused its discretion; and (2) the relator has no adequate remedy by
appeal. In re Reece, 341 S.W.3d 360, 364 (Tex. 2011) (orig. proceeding). A trial
court clearly abuses its discretion if it reaches a decision so arbitrary and
unreasonable as to amount to a clear and prejudicial error of law, or if it clearly
fails to analyze the law correctly or apply the law correctly to the facts. In re
Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding)
(per curiam). It is well established that, if the trial court has abused its discretion

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in ruling on a motion to disqualify counsel, mandamus is appropriate to correct the
trial court’s erroneous ruling because there is no adequate remedy by appeal. In re
Sanders, 153 S.W.3d at 56; In re Epic Holdings, Inc., 985 S.W.2d 41, 52 (Tex.
1998) (orig. proceeding).

                                     ANALYSIS

I.    Whether Garcia Met Her Burden to Disqualify Busby

      Disqualification of an attorney is a severe remedy. In re Nitla S.A. de C.V.,
92 S.W.3d 419, 422 (Tex. 2002) (orig. proceeding) (per curiam). Disqualification
“can result in immediate and palpable harm, disrupt trial court proceedings, and
deprive a party of the right to have counsel of choice.” Id. “Because of the serious
consequences of disqualification of opposing counsel, such motions can be
misused for delay or to exert inappropriate leverage to force a settlement.” In re
Tex. Windstorm Ins. Ass’n, 417 S.W.3d 119, 129 (Tex. App.—Houston [1st Dist.]
2013, orig. proceeding). A motion to disqualify should not be used as a tactical
weapon. Schwartz v. Jefferson, 930 S.W.2d 957, 960 (Tex. App.—Houston [14th
Dist.] 1996, orig. proceeding).

      The movant has the burden of proof on a disqualification motion, and the
court must strictly adhere to an exacting standard in determining whether
disqualification is warranted. Tex. Windstorm Ins. Ass’n, 417 S.W.3d at 129.
When a movant seeks disqualification based on an alleged violation of a
disciplinary rule, she must establish the violation with specificity. Id. In addition,
the movant must demonstrate that the opposing lawyer’s conduct caused actual
prejudice requiring disqualification. Nitla, 92 S.W.3d at 422.


                                          5
      Relator contends that the trial court abused its discretion by disqualifying
Busby (1) without utilizing an exacting standard or a showing of a violation of a
disciplinary rule; and (2) basing the disqualification on nothing more than
conclusory allegations and speculation.         Garcia did not rely on a specific
disciplinary rule in seeking disqualification of Busby. Although courts look to the
Texas Disciplinary Rules of Professional Conduct to decide disqualification issues,
those rules are merely guidelines, and not controlling standards, for
disqualification motions. In re Meador, 968 S.W.2d 346, 350 (Tex. 1998) (orig.
proceeding).    “[A] court has the power, under appropriate circumstances, to
disqualify an attorney even though he or she has not violated a specific disciplinary
rule.” Id. at 351. Thus, there is no requirement that the movant establish the
violation of a disciplinary rule for a trial court to disqualify an attorney. See id. at
350 (observing that the court had previously held that a trial court abused its
discretion in denying a motion to qualify an attorney even though the motion was
not based on a specific disciplinary rule (citing Nat’l Med. Enters., Inc. v. Godbey,
924 S.W.2d 123 (Tex. 1996) (orig. proceeding))).

      Although Garcia did not allege the violation of a specific disciplinary rule,
we look to Rule 1.09 for guidance under the facts of this case.               See Tex.
Disciplinary Rules Prof’l Conduct R. 1.09, reprinted in Tex. Gov’t Code Ann., tit.
2, subtit. G, app. A (West 2013). Rule 1.09(a)(3) provides:

      Without prior consent, a lawyer who personally has formerly
      represented a client in a matter shall not thereafter represent another
      person in a matter adverse to the former client . . . if it is the same or a
      substantially related matter.

Id.

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      Relator argued at the hearing that Garcia had not retained Busby’s firm
because no one at the firm had signed the employment contract, although Garcia
had signed it. The attorney-client relationship is a contractual relationship in
which an attorney agrees to render professional services for a client. Stephenson v.
LeBouf, 16 S.W.3d 829, 836 (Tex. App.—Houston [14th Dist.] 2000, pet. denied)
(citing Vinson & Elkins v. Moran, 946 S.W.2d 381, 405 (Tex. App.—Houston
[14th Dist.] 1997, writ dism’d by agr.)).         To establish the attorney-client
relationship, the parties must explicitly or by their conduct manifest an intention to
create the relationship. Id. (citing Vinson & Elkins, 946 s.W.2d at 405). Whether
an attorney-client relationship can be implied depends upon an objective standard,
looking at what the parties said and did to support an agreement to enter into a
relationship. In re Baytown Nissan, Inc., 451 S.W.3d 140, 146 (Tex. App.—
Houston [1st Dist.] 2014, orig. proceeding). One party’s subjective belief that an
attorney-client relationship was formed is not sufficient. LeBlanc v. Lange, 365
S.W.3d 70, 79 (Tex. App.—Houston [1st Dist.] 2011, no pet.). A question of fact
exists when the evidence does not conclusively establish the existence of an
attorney-client relationship. Tanox, Inc. v. Akin, Gump, Strauss, Hauer & Feld,
L.L.P., 105 S.W.3d 244, 254 (Tex. App.—Houston [14th Dist.] 2003, pet. denied).

      On November 8, 2015, relator retained Busby’s firm to represent him in
obtaining a divorce from Garcia. On November 11, Garcia met with at least one
employee of the firm (Sudatu) to obtain representation in obtaining a divorce from
relator, and paid a $2,500 retainer. Sudatu stated that the firm would start to work
on Garcia’s divorce in two or three days. Under the objective standard discussed
above, the trial court heard some evidence supporting an intention to create an
attorney-client relationship between Busby’s firm and Garcia, and it resolved any
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factual dispute regarding whether such an attorney-client relationship existed in
favor of Garcia. An appellate court may not resolve factual issues in a mandamus
proceeding. In re Angelini, 186 S.W.3d 558, 560 (Tex. 2006) (orig. proceeding).
Thus, we must credit the trial court’s implied finding that Busby was Garcia’s
counsel, albeit of short duration.

      Relator also disputes that there is a genuine threat that Busby may divulge
confidential information he may have obtained in his brief representation of
Garcia.   In support of his position, relator submitted affidavits of attorneys,
paralegals, and legal assistants employed at Busby’s firm. Each affiant testified
that he or she had no knowledge of, or access to, Garcia’s confidential information.
Two affiants were not employed at the firm at the time Garcia came to the firm’s
office. For further support, relator asserts that Garcia gave conflicting testimony
about whether she provided confidential information to the firm, while Busby was
certain that Garcia had not given him confidential information.

      “The potential of intentional or inadvertent revelation of a former client’s
confidences exists each time an attorney undertakes representation of a client
against a former client.” NCNB Tex. Nat’l Bank v. Coker, 765 S.W.2d 398, 399
(Tex. 1989) (orig. proceeding).      When the moving party proves a substantial
relationship between the two representations, she establishes as a matter of law that
an appearance of impropriety exists and is entitled to a conclusive presumption that
confidences were imparted to the attorney. Id. at 400. “Although the former
attorney will not be presumed to have revealed the confidences to his present
client, the trial court should perform its role in the internal regulation of the legal
profession and disqualify counsel from further representation in the pending

                                          8
litigation.” Id. Former clients generally are not required to disclose confidential
communications with former counsel to make the showing of actual prejudice that
is usually necessary to support the sever remedy of disqualification.            Tex.
Windstorm Ins. Ass’n, 417 S.W.3d at 132–33.

      There is no dispute that Busby’s representation of Garcia and relator
occurred in the same matter.       Garcia testified that she provided confidential
information to the firm, and in any event the provision of such information is
presumed as explained above. Although there was also contrary evidence, we may
not deal with disputed issues of fact resolved by the trial court. See Angelini, 186
S.W.3d at 560. Thus, we must credit the trial court’s implied finding that Garcia
provided confidential information to Busby.

      Although relator argues that the evidence shows there was no genuine threat
that Busby or his firm would reveal Garcia’s confidences because no firm
employee had continuing knowledge of Garcia’s confidential information, Garcia
was not required to show that anyone at the firm would reveal her confidences.
See Coker, 765 S.W.2d at 400; see also Tex. Windstorm Ins. Ass’n, 417 S.W.3d at
132–33. Therefore, under the facts of this case, the trial court did not clearly abuse
its discretion in concluding that Garcia met her burden to disqualify Busby from
representing relator.

II.   Whether the Trial Court Should Have Considered Other Remedies

      Relator contends that the trial court abused its discretion because it did not
consider alternatives to disqualification such as questioning Garcia about the
alleged confidential information she provided to the firm outside the presence of
relator and Busby or inspecting the firm’s files. See Davis v. Stansbury, 824
                                          9
S.W.2d 278, 284 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding) (holding
trial court abused its discretion by disqualifying wife’s attorney, when husband
admitted that he had not provided the attorney with any privileged information, and
stating that court could have held an in-camera hearing in chambers, outside the
presence of wife and her attorney, for husband to answer questions about
unprivileged information that passed between him and his attorney, or conducted
an in-camera inspection of the attorney’s file if the documents were available).

       As noted above, an attorney’s former client is not required to disclose
confidential communications with former counsel in order to show actual prejudice
to support disqualification. Tex. Windstorm Ins. Ass’n, 417 S.W.3d at 132–33.
Because the trial court did not abuse its discretion in concluding that Garcia met
her burden of proving that disqualification is warranted, it was not necessary for
the trial court to consider alternatives to disqualification.

III.   Whether Garcia Waived Her Disqualification Complaint

       Relator contends that Garcia, by not timely filing her motion to disqualify,
waived her complaint that Busby should be disqualified. “A party who fails to file
its motion to disqualify opposing counsel in a timely manner waives the
complaint.”    Vaughan v. Walther, 875 S.W.2d 690, 690 (Tex. 1994) (orig.
proceeding) (per curiam).

       Relator argues that the Busby firm discovered the conflict by November 14,
2015, three days after Garcia’s consultation, and that its attempts to contact Garcia
were unsuccessful.      According to relator, Garcia learned of the conflict on
November 25, 2015, when she called the firm. Busby filed relator’s original
petition for divorce on December 22, 2015, but Garcia did not file the motion to
                                           10
disqualify until April 29, 2016. Therefore, relator contends that Garcia knew of
the conflict as early as November 25, 2015, but waited to move for disqualification
until April 29, 2016. See Vaughan, 875 S.W.2d at 690-91 (holding that movant
waived her right to disqualify relator’s attorney in child custody suit because she
waited until the day of the final hearing to file a motion to disqualify, when she had
been aware of the possible conflict of interest as early as the temporary hearing
nearly seven months earlier); Turner v. Turner, 385 S.W.2d 230, 236 (Tex. 1964)
(holding that movant waived her right to disqualification of opposing counsel by
waiting to file motion to disqualify her husband’s attorney more than eighteen
months after she notified attorney that she had discharged him and hired other
counsel to represent her). Enstar Petroleum. Co. v. Mancias, 773 S.W.2d 662, 664
(Tex. App.—San Antonio 1989, orig. proceeding) (per curiam) (holding that
relator waived its right to disqualify entire law firm when it was aware of the
disqualification issue as early as December 1988, “well in advance of the March
1989 trial setting”).

      The cases cited by relator in support of his waiver argument are
distinguishable from this case. Garcia testified that she did not learn that the
divorce suit had been filed until March 2016, when relator “showed up at [her]
house” with a proposed decree and a waiver. Garcia states in her response that she
was never served with citation, and no return of service is on file in the trial court.
Relator does not dispute that Garcia was not served with citation.

      Garcia filed an answer on April 1, 2016, and the motion to disqualify on
April 29, 2016. Only four weeks passed between the date on which Garcia filed
her answer, having not previously been served with the original petition Busby

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filed on behalf of relator, and the date on which she filed the motion to disqualify
Busby. Furthermore, Garcia did not wait until the eve of trial to file the motion to
disqualify. Therefore, this record does not show that Garcia delayed in filing her
motion to disqualify.

                                   CONCLUSION

      Relator has not shown that the trial court abused its discretion by granting
Garcia’s motion to disqualify relator’s counsel. Accordingly, we deny relator’s
petition for writ of mandamus.


                                  PER CURIAM

Panel consists of Justices Busby, Donovan, and Wise.




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