Opinion
No. 05-05-00520-CV
Dissenting Opinion issued July 6, 2005.
Original Proceeding from the 298th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 03-00497-M.
Writ of Mandamus Denied.
Before Justices MOSELEY, BRIDGES, and FRANCIS.
MEMORANDUM OPINION
Relator contends the trial judge erred in not disqualifying opposing counsel. We conclude the trial judge did not abuse his discretion in not disqualifying opposing counsel. Accordingly, relator's petition for writ of mandamus is DENIED. See Tex.R.App.P. 52.8(a); In re George, 28 S.W.3d 511, (Tex. 2000) (orig. proceeding).
DISSENTING OPINION
The majority denies relator Michael Basco's request for relief by concluding the trial judge did not abuse his discretion in denying Basco's motion to disqualify opposing counsel, James Stewart. I agree with the majority in denying the petition on the ground that Stewart is not disqualified because he is a witness. However, I disagree and would grant the writ on the issue of conflict of interest.
Basco is a physician engaged in the practice of obstetrics and gynecology in the Dallas area. Basco had privileges to practice medicine at Baylor Medical Center at Grapevine. Baylor terminated Basco's privileges for several reasons, one of which was the failure to timely report a medical malpractice lawsuit against him, the Powell claim. William Borum, a partner in Burford Ryburn, represented Basco in the Powell claim. Stewart was also a partner in the firm at the time it undertook to represent Basco on the Powell claim. Approximately four years after Powell sued Basco, the claim settled. Broum wrote a letter explaning Basco's liability and the settlement terms for the Powell claim. Basco forwarded the letter to Baylor. After the letter was sent to Baylor, Stewart left Burford Ryburn and he began representing Baylor in the proceedings to terminate Basco's privileges. One of the grounds for the termination was the timing of Basco's report of the Powell claim. After Baylor terminated Basco's privileges, he sued for wrongful termination, the underlying case. Stewart represents Baylor in this case.
In this case, Basco asserts he relied on the advice of Borum in not reporting the Powell claim to Baylor until its conclusion so its use as a ground for termination of his privileges is improper. Basco moved to disqualify Stewart on the grounds that he has a conflict of interest and he will be a witness. After a hearing, the trial court denied the motion to disqualify without specifying the grounds for the denial. Basco then filed this original proceeding asserting the trial court abused its discretion in denying the motion. Basco asserts the motion should be granted due to Stewart's conflict of interest and position as a fact witness. I will address only my disagreement with the majority's decision to deny the petition on the ground of conflict of interest.
Basco asserts Stewart must be disqualified due to a conflict of interest in having been a partner at the time the firm represented him on the Powell claim. I agree. Basco's defense to the termination is that Borum, Stewart's former partner, advised him that he did not have to report the claim to Baylor. Stewart, representing Baylor, is directly attacking that claim. Baylor asserts the Powell claim was public information so there has not been a breach of confidential information, thus no need for disqualification. The issue is not was the Powell claim public knowledge; the issue is did Stewart's former partner, while Stewart was a member of the firm, advise Basco that he did not have to report the claim and is Stewart now challenging that advice. The answer is yes. Stewart's current position requires him, in a substantially related matter, to take a "materially and directly adverse position" to his partner's former client which is a conflict of interest under the disciplinary rules. There is no question this case is substantially related to the Powell claim. Tex. Disciplinary R. Prof'l Conduct 1.06, reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G app. A (Vernon 2005) (tex. State Bar R, art X. § 9). Further, Stewart's current client, Baylor, is questioning the validity of Borum's services or work product for Basco. Tex. Disciplinary R. Prof'l Conduct 1.09. This also constitutes a conflict of interest. "The legal system's image is ill-served by lawyers criticizing the work of their former associates with whom they shared in the fees paid for the work." In re Epic Holdings, Inc. 985 S.W.2d 41, 52 (Tex. 1998) (orig. proceeding).
It is virtually impossible for a former client to prove that attorneys in the same firm had not shared confidences. Pollard v. Merkel, 114 S.W.3d 695, 700 (Tex.App.-Dallas 1903, writ denied). Because of this there is an irrebuttable presumption "that an attorney in a law firm has access to the confidences of clients and former clients of other attorneys in the firm." Pollard, 114 S.W.3d at 700 quoting Nat'l Med. Enters. v. Godbey, 924 S.W.2d 123, 131 (Tex. 1996) (orig. proceeding). This presumption helps to guard the integrity of the legal profession. Nat'l Med. Enters., 924 S.W.2d at 131. This same reasoning should apply in determining whether or not an attorney should be disqualified where the client is relying on advice now challenged by a member of the same firm.
Accordingly, I conclude the trial court abused its discretion in not disqualifying Stewart. Because I conclude the trial court abused its discretion in not disqualifying Stewart and there is no adequate remedy at law for the denial of a motion to disqualify, I would grant the writ and order the trial court to enter an order disqualifying Stewart. Thus, I dissent.