The Texas Lawyer by John Council - April 29, 2010
It has been a rough couple of weeks for two large Texas firms after intermediate appellate courts ruled that they are disqualified from representing clients because of unusual conflict-of-interest allegations. In an April 16 mandamus opinion in In Re: Guaranty Insurance Services Inc., Austin's 3rd Court of Appeals affirmed a trial court decision and ruled that the trial judge did not abuse his discretion when he disqualified Strasburger & Price from representing a client in an insurance-coverage case because a Strasburger legal assistant had worked for the opposing party in the case while employed at a different firm. And on April 21, San Antonio's 4th Court of Appeals granted a motion in In Re: Maria Cristina Sada de Brittingham to disqualify former 4th Court Justice Sarah Duncan and the firm where she currently works, Locke Lord Bissell & Liddell, from representing clients in a decade-old probate dispute because when she was a justice Duncan had sat on a 4th Court panel that ruled on an earlier appeal related to the case. The 3rd Court's opinion involves a legal assistant who changed jobs. As alleged in its Oct. 5, 2009, motion to disqualify, Trans-Global Solutions sought to disqualify Strasburger from representing Guaranty Insurance Services in an insurance-coverage dispute . As alleged in Trans-Global's motion, Strasburger legal assistant Clyde Williams previously had worked on the case on behalf of Trans-Global while employed at a different firm, Godwin Pappas Langley Ronquillo. Williams left the Godwin firm in 2006; in 2008, some lawyers left the Godwin firm to form Houston's Kane Russell Coleman & Logan. Kane Russell continued to represent Trans-Global.
Guaranty Insurance Services argued in an Oct. 9, 2009, response to the disqualification motion that Strasburger had employed procedures set forth in Texas Supreme Court opinions to guard against disclosure of confidences by legal assistants, such as asking potential employees on their job applications about work they did while employed at different firms for parties involved in litigation against Strasburger clients. Guaranty also wrote in the response that Williams' work on behalf of Trans-Global while at the Godwin firm was minimal, comprising no more than six hours in 2006. Williams had no memory of working on the case when he applied for a job at Strasburger, according to the response. On Oct. 12, 2009, Judge Scott Jenkins of Austin's 53rd District Court issued an order in Guaranty Insurance Services Inc. v. Trans-Global Solutions, et al. stating: "Strasburger & Price is disqualified from serving as counsel for Guaranty Insurance Services Inc. in this proceeding." Guaranty Insurance Services then filed a petition for writ of mandamus at the 3rd Court. In a 2-1 decision issued April 16, the 3rd Court majority looked at the 1994 Texas Supreme Court opinion in Phoenix Founders Inc. v. Marshall , in which the high court wrote that "when a paralegal works on the case at one firm, and then moves to another firm on the opposing side of that litigation, two presumptions come into play." First, there is a conclusive presumption that the legal assistant acquired confidential information during his work on the case at the old firm. Second, there is a rebuttable presumption that the paralegal shared confidential information about the case with members of the new firm. The new firm can rebut the second presumption by showing "that sufficient precautions have been taken to guard against any disclosure of confidences," according to the majority opinion, which quotes Phoenix Founders . The 3rd Court majority also noted specific language in Phoenix Founders that said, "[D]isqualification is not required if the [new] firm is able to establish that it has effectively screened the paralegal from any contact with the underlying suit." The 3rd Court majority concluded that while even the opposing counsel in Guaranty Insurance Services described Strasburger's conflict-screening process as "exemplary," it was not enough to overcome a presumption that the legal assistant shared information with his new firm about the case. "A firm's screening procedures, however thorough, must actually be effective in order to rebut the presumption of shared information," wrote 3rd CourtJustice Diane Henson, who was joined by Chief Justice Woodie Jones. "According to Strasburger, performing a conflicts check and instructing a paralegal not to work on any matter on which he worked during prior employment is sufficient to rebut the presumption of shared confidences, even if the paralegal, after being so instructed, works on such matters anyway. We disagree," Henson added. "It is not merely the act of instructing the paralegal to avoid working on both sides of the same litigation that serves to protect client confidences. It is the implication that the paralegal will actually follow the instructions and refrain from doing so. Unless the instructions are followed, they are of no benefit to the clients whose interests are meant to be protected." Third Court Justice G. Alan Waldrop disagreed with the majority's reading of Phoenix Founders , pointing out the serious consequences a ruling disqualifying counsel can have on a case. "Disqualification of a firm in a case like this where so much has been invested in counsel is no minor matter. It can have not only substantial impacts on the parties, but potentially catastrophic impacts both from a financial standpoint as well as a temporal standpoint. It is not a sanction to be imposed on parties lightly or without just cause demonstrated on the record," Waldrop wrote. "Nevertheless, the majority concludes that the Phoenix Founders standard is not flexible enough to account for this type of situation and allow the courts to arrive at a more just outcome. I do not think the trial court or the majority here have correctly applied the standard for disqualification articulated by the Texas Supreme Court." The mandamus opinion disappoints John Spiller, a partner in Strasburger's Houston office who represents Guaranty Insurance Services. Strasburger has worked on Guaranty Insurance Services' suit for almost six years, he says. Strasburger spent more than $1 million in billable hours litigating the case, Spiller says. "The opinion, in a nutshell, says the procedures that were put in place were thorough. In fact, they were called exemplary. But unfortunately the legal assistant worked on both sides of the case. And the court takes that as per se that the screening was not effective," Spiller says. "It's kind of a cold comfort to say, 'The processes were great, but sorry.' " Spiller says there is nothing in the 3rd Courtmajority opinion that suggests how the firm could have avoided the conflict-of-interest issue with its legal assistant. "I did not read the majority's opinion as suggesting different measures or if there was a different approach that a different result would occur," says Spiller, who, as of Texas Lawyer 's presstime, had not discussed with his client a possible appeal to the Texas Supreme Court. Ron Bankston, a director in the Houston office of Kane Russell who represents Trans-Global Solutions, did not return a telephone call seeking comment. Williams did not return a telephone call seeking comment before presstime on April 22.
According to the 4th Court's unanimous opinion in In Re: Maria Cristina Sada de Brittingham , earlier this year, Kevin M. Mackie, successor administrator of the estate of Juan Roberto Brittingham-McLean, moved to disqualify former Justice Duncan and all members of her firm, Locke Lord Bissell & Liddell, from representing heirs to the estate in a post-judgment discovery dispute pending before the 4th Court in Brittingham. Duncan retired from the 4th Court at the end of 2006 and joined Locke Lord's San Antonio office as of counsel in April 2007. Mackie sought the disqualification because in 2006, Duncan sat on a three-justice panel in Tijerina v. Mackie — a separate appeal related to the same probate matter — in which the 4th Court affirmed two trial court orders. Duncan argued in a response brief to the 4th Court that she and her firm should not be disqualified in Brittingham because Mackie's motion did not establish a violation of Texas Disciplinary Rule of Professional Conduct 1.11(a); Mackie consented to Duncan's representation of the heirs; and Mackie had to establish prejudice and failed to do so. However, the 4th Court disagreed and disqualified Duncan and Locke Lord. According to the court, Rule 1.11(a) states: "A lawyer shall not represent anyone in connection with a matter in which the lawyer has passed upon the merits or otherwise participated personally and substantially as an adjudicatory official or law clerk to an adjudicatory official, unless all parties to the proceeding consent after disclosure." While Duncan and Locke Lord argued that Tijerina was not related to Brittingham , the 4th Court wrote that "these discrete appealable issues arise from one probate proceeding." Disputes over the Brittingham estate have been appealed to the 4th Court 14 times since 2000, according to the opinion. "We conclude Duncan is representing relators 'in connection with a matter in which [she] has passed upon the merits or otherwise participated personally and substantially as an adjudicatory official or law clerk to an adjudicatory official,' " wrote Chief Justice Catherine Stone, who was joined by Justices Karen Angelini and Sandee Bryan Marion. The 4th Court also ruled that Mackie did not consent to Duncan appearing in the case. "We hold that simply listing Duncan on a brief in an appellate proceeding is not a proper 'disclosure' of the conflict under Rule 1.11(a). Within the context of Rule 1.11(a), a disclosure requires the lawyer to inform the party that she participated in the matter personally and substantially as an adjudicatory official," Stone wrote. "The mere listing of an attorney in the signature block of an appellate brief does not constitute such a disclosure." The court found that Mackie did not have to show that he was prejudiced by Duncan's appearance in the case under Rule 1.11(a). "Requiring Mackie to show that the confidential discussions among appellate court justices prejudiced him would be an impossible burden, and one we do not believe the rule does or should impose." Peter Kelly, a Houston solo who represents Mackie in Brittingham , is pleased with the ruling. He believes Duncan's participation in the appeal could have prejudiced his client. "A judge who was privy to chambers discussions might know how to frame arguments in a specific case and know how the other judges would respond to those arguments, particularly in a case like this where there have been so many appellate proceedings," Kelly says. Duncan did not return a telephone call seeking comment before presstime on April 22. Locke Lord of counsel Mike Hatchell, who is co-counsel with Duncan on Brittingham, also did not return a call.
Jim McCormack, an Austin solo and legal ethics expert, says both of the disqualification cases presented rare problems for the appellate courts to solve. Unfortunately for Strasburger, it doesn't seem like there was much the firm could do to avoid being disqualified from the case, he says. "Screening systems are not perfect. But, in a case like this, it had to be perfect. It had to accurately detect the conflict, and the fact that it didn't was dispositive," McCormack says. "In terms of a practical solution, I don't think there is one, other than very careful vetting of staff during the process." Duncan and Locke Lord's disqualification was a rare ruling, McCormack says. Rule 1.11(a) mostly comes up regarding former law clerks at courts who subsequently join firms. The rule rarely comes into play regarding judges who leave courts to work at firms, he says. But he says the rule is clear: Former judges cannot represent clients in cases in which they have "participated personally and substantially as an adjudicatory official." Notes McCormack, "That's about as clear as it gets. I'm not fussing at the former judge or the law firm, but I don't see how the court of appeals would have any other alternative" other than to disqualify them.