349 S.W.3d 688
Tex. App.2011Background
- Relators LTHM and MRHC filed a petition for writ of mandamus in the Texas Court of Appeals seeking disqualification of Plaintiffs' counsel.
- Plaintiffs allege Plaintiffs' counsel used a consulting expert, Ferguson, who had prior roles as former general counsel to RHS and LTHM/MRHC, implicating Rule 1.09 conflicts.
- Trial court denied the motion to disqualify after a hearing, concluding no disqualification was necessary.
- Relators learned Ferguson was consulting for Plaintiffs' counsel in discovery responses around February 10, 2010, and filed the disqualification motion on March 11, 2011.
- The underlying suit is a lender liability action by six plaintiffs against LTHM, MRHC, First National Bank, and others, alleging continued ownership of LTHM.
- Relators contend the delay in filing the motion breached waiver rules; the court examines whether the conflict disclosure gave rise to waiver.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether relators waived disqualification by delay | Relators learned of the conflict in Feb 2010 and timely filed. | Delay in filing supports waiver and denial of mandamus relief. | Waiver supported; mandamus denied. |
| Whether the conflict became apparent in Feb 2010 | Relators lacked knowledge of Ferguson's subject matter before Feb 2011. | Record shows Ferguson's related work and negotiations gave relators knowledge in Feb 2010. | Conflict became apparent in Feb 2010. |
| Whether the trial court abused its discretion in denying disqualification | The opposing counsel's conflict impaired attorney-client confidences. | No abuse; relators failed to show substantial grounds for disqualification. | No abuse; petition denied. |
Key Cases Cited
- Vaughan v. Walther, 875 S.W.2d 690 (Tex.1994) (timeliness governs waiver of disqualification)
- Wasserman v. Black, 910 S.W.2d 564 (Tex.App.-Waco 1995) (consideration of delay and other evidence in waiver analysis)
- Spears v. Fourth Court of Appeals, 797 S.W.2d 654 (Tex.1990) (dilatoriness indicators in waiver analysis)
- HECI Exploration Co. v. Clajon Gas Co., 843 S.W.2d 622 (Tex.App.-Austin 1992) (timeliness of motion supports or undermines waiver)
- Conoco, Inc. v. Baskin, 803 S.W.2d 416 (Tex.App.-El Paso 1991) (timing near trial is relevant to waiver/delay tactic)
- Enstar Petroleum Co. v. Mancias, 773 S.W.2d 662 (Tex.App.-San Antonio 1989) (early knowledge of conflict and timeliness of motion)
- Posadas, USA, Inc. v. Gonzalez, 100 S.W.3d 254 (Tex.App.-San Antonio 2001) (distinguishes waiver in withdrawal vs. disqualification; knowledge issue)
- Taylor v. Taylor, 67 S.W.3d 530 (Tex.App.-Waco 2002) (timeliness and timing relative to trial affect waiver)
- National Medical Enterprises, Inc. v. Godbey, 924 S.W.2d 123 (Tex.1996) (mandamus review of trial court factual determinations)