in Re Michelle E. Murphy

Petition for Writ of Mandamus Conditionally Granted and Memorandum Opinion filed March 5, 2009 Petition for Writ of Mandamus Conditionally Granted and Memorandum Opinion filed March 5, 2009. In The Fourteenth Court of Appeals ____________ NO. 14-08-01017-CV ____________ IN RE MICHELLE E. MURPHY, Relator ORIGINAL PROCEEDING WRIT OF MANDAMUS M E M O R A N D U M   O P I N I O N In this original proceeding, relator, Michelle E. Murphy, seeks a writ of mandamus ordering the respondent, the Honorable Gladys Burwell, presiding judge of the Probate Court of Galveston County, to vacate her October 6, 2008 order disqualifying relator as counsel. We conditionally grant the writ. I. Underlying Facts and Procedural History The underlying litigation involves a dispute over the administration of the estate of James Morelock. Relator Michelle E. Murphy is the decedent=s daughter, and real party in interest, Kari Strain Morelock, is his surviving spouse. On August 8, 2007, Murphy filed an application to serve as administrator of the decedent=s estate. On August 27, 2007, Morelock filed an application to probate the decedent=s will. On January 24, 2008, Morelock non-suited her application to probate the will, and, on April 4, 2008 filed a competing application to serve as administrator of the decedent=s estate. The underlying action in this case is the dispute between Murphy and Morelock as to who should be appointed administrator of the decedent=s estate. On June 4, 2008, Morelock filed a motion to disqualify Murphy as counsel on the grounds that (1) Murphy had previously represented Morelock and the decedent in the preparation of a survivorship agreement and (2) local rules and Texas case law prohibit an individual acting pro se to administer an estate. Murphy responded to Morelock=s motion alleging (1) Morelock waived disqualification because she delayed in filing the motion until ten months after Murphy filed her application to be appointed as administrator, (2) Murphy did not represent Morelock in the preparation of the survivorship agreement, (3) no confidential information was disclosed in preparation of the agreement, and (4) the local rule does not apply to Murphy. The respondent held a hearing on Morelock=s motion and found that Morelock did not waive her objection and that Murphy was disqualified as counsel both as a result of her previous representation of Morelock and because she is seeking letters of administration. At the hearing, both parties testified about a survivorship agreement that Murphy prepared prior to the decedent=s death. Morelock testified that she and the decedent had not executed wills and were concerned about property division following one or the other=s death. Murphy suggested that they enter into a survivorship agreement, which would address to whom the property would pass upon the death of either spouse. Morelock testified that she divulged confidential financial information to Murphy to facilitate Murphy=s preparation of the agreement. Morelock, the decedent, and Murphy were present when the agreement was signed, and Murphy represented both parties to the agreement. Morelock further testified that Murphy=s earlier representation of her was so related to the administration of the estate that there was a genuine threat that the confidences she revealed would be disclosed. Murphy contradicted Morelock=s testimony, stating that in preparing the survivorship agreement, she represented only her father, the decedent. She disputed that Morelock divulged confidential information, testifying that all of the information used in preparation of the agreement was public record. Although the agreement affected both parties, she prepared it at the request of the decedent. She obtained the information to prepare the agreement by searching county records. With regard to the issue of waiver, Morelock testified that the conflict did not arise until she filed for letters of administration on April 4, 2008. She further testified that she was not aware of her right to file a motion to disqualify counsel until she retained her current counsel approximately four weeks before the motion was filed. On October 6, 2008, the respondent issued an order granting the motion to disqualify finding that Murphy Apreviously represented Kari Strain Morelock in a matter substantially related to the proceedings at bar.@ The respondent further held that Murphy Ais disqualified from serving as counsel for herself in the capacity of applicant as administrator.@ Murphy filed this mandamus proceeding challenging the trial court=s order of disqualification. II. Standard of Review Mandamus is an extraordinary remedy to correct a trial court=s abuse of discretion that cannot be remedied through standard appellate channels. Walker v. Packer, 827 S.W.2d 833, 840B44 (Tex. 1992) (orig. proceeding). Appeal is not an adequate remedy for a trial court=s erroneous disqualification of a party=s chosen counsel. In re Butler, 987 S.W.2d 221, 224 (Tex. App.CHouston [14th Dist.] 1999, orig. proceeding). Because disqualification is a severe remedy, the courts must adhere to an exacting standard so as to discourage the use of a motion to disqualify as a dilatory trial tactic. Spears v. Fourth Court of Appeals, 797 S.W.2d 654, 656 (Tex. 1990) (orig. proceeding). The burden is on the movant to establish with specificity a violation of one or more of the disciplinary rules. See id. Mere allegations of unethical conduct or evidence showing a remote possibility of a violation of the disciplinary rules will not suffice under this standard. Id. To show an abuse of discretion with respect to factual issues, the party requesting mandamus relief must establish that the trial court could have reached but one decision, given the facts existing and law applicable to the case. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding). The trial court=s decision may be disturbed by mandamus only if it is shown to be arbitrary or unreasonable. Walker, 827 S.W.2d at 839; Butler, 987 S.W.2d at 226. Murphy challenges the respondent=s order on the following grounds: (1) Morelock waived her right to disqualify counsel by waiting too long to file her motion, (2) the trial court=s order does not recite evidence of specific similarities between the administration of the estate and preparation of the survivorship agreement, (3) there is no conflict of interest because relator did not represent Morelock in preparing of the survivorship agreement, and (4) the Galveston County local policy does not apply in this instance. III. Waiver Murphy contends that Morelock waived her complaint about a conflict of interest by waiting over nine months to object to Murphy representing herself as the administrator of the estate. Waiver of a motion to disqualify is determined by the filing of the motion. A party who does not file a motion to disqualify opposing counsel in a timely manner waives the complaint. Vaughan v. Walther, 875 S.W.2d 690 (Tex. 1994) (orig. proceeding). In determining whether a party has waived the complaint, the court will consider the length of time between when the conflict became apparent to the aggrieved party and when the aggrieved party filed the motion to disqualify. See Wasserman v. Black, 910 S.W.2d 564, 568 (Tex. App.CWaco 1995, orig. proceeding). The court should also consider any other evidence which indicates the motion is being filed not due to a concern that confidences related in an attorney‑client relationship may be divulged but as a dilatory trial tactic. Spears, 797 S.W.2d at 656. Morelock filed her motion to disqualify counsel on June 4, 2008. Murphy contends that the conflict became apparent to Morelock on August 8, 2007 when Murphy filed for letters of administration. Morelock testified that she did not file a completing claim for administration until April 4, 2008. The trial court heard evidence from both parties and determined that Morelock did not waive her right to file the motion. The trial court=s implied finding of no waiver is supported by Morelock=s testimony that the conflict did not become apparent until she filed a competing claim for letters of administration. Factual determinations by the trial court may not be disturbed by mandamus review if those determinations are supported by sufficient evidence. See Mendoza v. Eighth Court of Appeals, 917 S.W.2d 787, 790 (Tex. 1996) (orig. proceeding). After reviewing the record, we conclude the trial court=s finding is supported by sufficient evidence. The trial court did not abuse its discretion in finding that Morelock did not waive her right to seek disqualification. Her motion was filed in June, just two months after she filed her competing letters of administration. IV. Conflict of Interest Murphy further argues that the trial court abused its discretion in finding a conflict of interest because (1) she did not represent Morelock in preparation of the survivorship agreement and (2) even if a prior attorney-client relationship existed, the two matters are not substantially related so as to require disqualification of counsel. The Texas Rules of Professional Conduct provide guidance in determining whether an attorney should be disqualified from representing a party in litigation. See Henderson v. Floyd, 891 S.W.2d 252, 253 (Tex. 1995) (orig. proceeding). Rule 1.09 of the Texas Disciplinary Rules of Professional Conduct is the applicable rule and provides in part: (a) Without prior consent, a lawyer who personally has formally represented a client in a matter shall not thereafter represent another person in a matter adverse to the former client: * * * (2) if the representation in reasonable probability will involve a violation of Rule 1.05; or (3) if it is the same or a substantially related matter. Tex. Disciplinary R. Prof=l Conduct 1.09, reprinted in Tex. Gov=t Code Ann., tit. 2, subtit. G app. A (Vernon Supp. 2008) (Tex. State Bar R. art. X, ' 9). Rule 1.05, referenced in Rule 1.09(a)(2), addresses a lawyer=s duties with respect to a client=s confidential information. Rule 1.05(b), provides: (b) [A] lawyer shall not knowingly: (1) Reveal confidential information of a client or a former client[.] * * * (3) Use confidential information of a former client to the disadvantage of the former client after the representation is concluded unless the former client consents after consultation or the confidential information has become generally known. Tex. Disciplinary R. Prof=l Conduct 1.05, reprinted in Tex. Gov=t Code Ann., tit. 2, subtit. G app. A (Vernon Supp. 2008) (Tex. State Bar R. art. X, ' 9). Rule 1.09(a)(2) incorporates Rule 1.05, which prohibits a lawyer=s use of confidential information obtained from a former client to that former client=s disadvantage. Rule 1.09, thus forbids a lawyer to appear against a former client if the current representation in reasonable probability will involve the use of confidential information or if the current matter is substantially related to the matters in which the lawyer has represented the former client. In re Hoar Construction, 256 S.W.3d 790, 800 (Tex. App.CHouston [14th Dist.] 2008, orig. proceeding). 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 so related to the facts in the pending litigation, (3) that it involved a genuine threat that confidences revealed to his former counsel will be divulged to his present adversary. See NCNB Tex. Nat=l Bank v. Coker, 765 S.W.2d 398, 400 (Tex. 1989) (orig. proceeding). Although the court heard evidence on whether the information given to Murphy was confidential, the court made a finding only as to whether the matters were substantially similar. The trial court found that Murphy Apreviously represented Kari Strain Morelock in a matter substantially related to the proceedings at bar.@ Murphy argues that the link between the preparation of the community property survivorship agreement and the facts and issues in the administration of the estate do not meet the Asubstantially related@ standard. In making this argument, she primarily relies on her arguments that no confidential information was disclosed in preparation of the survivorship agreement. However, the client=s privilege in confidential information disclosed to her attorney is not nullified by the fact that the circumstances to be disclosed are part of a public record, or that there are other available sources for such information. In re American Airlines, Inc., 972 F.2d 605, 614 (5th Cir. 1992), citing Emle Industries, Inc. v. Patentex, Inc., 478 F.2d 562, 572B73 (2d Cir. 1983). AThis ethical precept exists without regard to the nature or source of information or the fact that others share the knowledge.@ Brennan=s, Inc. v. Brennan=s Rests., Inc., 590 F.2d 168, 172 (5th Cir. 1979). In any event, in this case, the trial court found the existence of a Asubstantial relationship@ between the previous representation and the current proceedings. If the movant proves the existence of a substantial relationship, there is a conclusive presumption that confidences were imparted to the former attorney. Coker, 765 S.W.2d at 400. Morelock maintains that the subject of the underlying litigation, i.e., whether there is a need for administration of the decedent=s estate, is substantially similar to the preparation of the survivorship agreement because both actions Arelate[] to assets of the Decedent and Mrs. Morelock=s estate[.]@ The severity of disqualification of counsel requires the movant to produce evidence of specific similarities capable of being recited in the disqualification order. Id. A substantial relationship may be found only after Athe moving party delineates with specificity the subject matter, issues and causes of action@ common to prior and current representations and the court engages in a Apainstaking analysis of the facts and precise application of precedent.@ American Airlines, 972 F.2d at 614. Morelock failed to meet this burden by failing to show evidence of specific similarities capable of being recited in the disqualification order. Furthermore, the trial court=s order fails to recite evidence of specific similarities as required by the supreme court in Coker. In Coker, the court held that A[t]he vagueness of the court=s order indicates that the substantial relation test was not used; had it been, the court should have been able to state without difficulty the precise factors establishing a substantial relationship between the two representations.@ Coker, 765 S.W.2d at 400. The order in this case is vague and does not, on its face, state the precise factors establishing a substantial relationship between the two representations. This court has previously held that even if the order is vague, if it is apparent from the record that the trial court applied the proper test, a failure to comply with Coker is not an abuse of discretion. In re Butler, 987 S.W.2d at 227. In this case, it is not apparent from the record that the trial court applied the proper test. The trial court=s order does not sufficiently recite the factors the court considered in determining the two proceedings were substantially similar. The court=s order merely states that the proceedings are Asubstantially similar.@ Further, the record does not reveal how the proceedings are related. If the court had properly applied the substantial relationship test, it should have been able to recite in the order the precise factors establishing a substantial relationship between the two representations. Because the court failed to do so, it abused its discretion in granting the motion to disqualify. See Coker, 765 S.W.2d at 400. V. Local Policy Finally, Murphy argues that the trial court abused its discretion because the local policy relied on by the court does not apply in this instance. In finding that Murphy could not represent herself in seeking letters of administration, the trial court relied in part on a local policy. The policy states: A pro se is an individual who has not retained an attorney and appears in court to represent himself and no other person or entity. Under Texas law, individuals applying for letters testamentary, letters of administration, determinations of heirship, and guardianships of the person or estate must be represented by a licensed attorney. This rule follows from the requirement that only a licensed attorney may represent the interests of third-party individuals or entities and follows case law that fiduciaries must be represented by an attorney. The only proceedings that you can handle as a pro se are those in which you truly would be representing only yourself. For example, a pro se may apply to probate a will as a muniment of title when he or she is the sole beneficiary under the will and there are no debts against the estate other than those secured by liens against real estate. Whether a muniment of title is the correct probate procedure for a particular situation is a legal decision that is best made by an attorney. Note that anyone falsely swearing that the estate has no creditors, including Medicaid estate recovery, is subject to a perjury charge. Although the Clerk will accept documents for filing by pro se applicants, the Court will take no action on the documents unless there is an attorney of record in that case. Probate Court of Galveston County, Texas Administrative Order 2007-02. (emphasis in original) The policy states on its face that it is based on the requirement that only a licensed attorney can represent the interests of a third party. Murphy is a licensed attorney approved to represent the interests of others; therefore, we agree with Murphy that the local policy of prohibiting pro se administration of estates does not apply to her. Therefore, the trial court abused its discretion in disqualifying counsel based on the local policy of the Galveston County Probate Court. VI. Conclusion We conditionally grant the petition for a writ of mandamus and direct the trial court to vacate its October 6, 2008 order disqualifying relator as counsel. We are confident that the respondent will comply. The writ will issue only if the trial court fails to act in accordance with this opinion. The stay issued by this court on November 6, 2008 is lifted. /s/ Leslie B. Yates Justice Panel consists of Justices Yates, Seymore, and Boyce.