in Re Verna Francis Coley Thetford
574 S.W.3d 362
| Tex. | 2019Background
- Verna Thetford (elderly woman) executed a will and power of attorney in 2015 naming niece Jamie Rogers as attorney-in-fact and preferred guardian; attorney Alfred G. Allen III drafted those instruments.
- By 2017 Verna’s cognition had deteriorated; Jamie (then working for Allen) filed for temporary guardianship of Verna and a management trust, attaching physician statements diagnosing dementia.
- Verna opposed, retained other counsel, obtained a neuropsychological evaluation disputing incapacity, and moved to disqualify Allen on conflict grounds, alleging Allen previously represented Verna and had confidential information.
- The trial court denied disqualification, held a guardianship hearing, and appointed Jamie temporary guardian; Verna sought mandamus relief after the court of appeals denied relief.
- The Texas Supreme Court reviewed whether the disciplinary rules require automatic disqualification when a lawyer for an applicant seeks guardianship over a current or former client, and whether the trial court abused its discretion in refusing to disqualify Allen.
Issues
| Issue | Plaintiff's Argument (Thetford) | Defendant's Argument (Rogers/Allen) | Held |
|---|---|---|---|
| Whether Rule 1.02(g) required Allen to file guardianship and permitted him to represent the applicant | Rule 1.02(g) does not apply because Verna was not Allen’s client in 2017; even if it did, it does not excuse conflict under Rules 1.06/1.09 | Rule 1.02(g) allows reasonable protective action; Allen believed guardianship was necessary and acted in Verna’s best interest | Rule 1.02(g) allows reasonable protective steps but does not trump conflict rules; it does not mandate filing guardianship or representing the applicant |
| Whether prior estate-planning work is "substantially related" to guardianship under Rule 1.09 | Allen’s drafting of Verna’s will and POA gave him confidential info substantially related to guardianship | Any confidences reflected in the will/POA are public; Thetford failed to show specific facts creating a genuine risk of disclosure | Not substantially related; public instruments eliminate the claimed overlap and no genuine threat of disclosure shown |
| Whether representing the applicant (Jamie) is "adverse" to Thetford under Rules 1.06/1.09 | Guardianship petitions are inherently adverse; representing a prospective guardian is therefore prohibited without consent | Guardianship is not always adverse; adversity depends on whether applicant’s interests conflict with ward’s prior-expressed objectives | A flexible test: guardianship is adverse if applicant’s interests do not promote the ward’s objectives as the ward would have defined them when competent; here no adversity found |
| Whether trial court abused discretion by denying disqualification | Denial ignored conflict rules and posed risk to Verna’s interests | Trial court considered evidence, balance of harms, and acted within discretion; disqualification is severe and requires specificity | No abuse of discretion; trial court’s careful, fact-based ruling entitled to deference and mandamus denied |
Key Cases Cited
- Coker v. Schaefer, 765 S.W.2d 398 (Tex. 1989) (conclusive presumption that confidences were imparted during prior representation supports disqualification)
- In re Columbia Valley Healthcare Sys., L.P., 320 S.W.3d 819 (Tex. 2010) (reaffirming presumption that an attorney obtained confidential information during representation)
- In re Turner, 542 S.W.3d 553 (Tex. 2017) (standard for showing substantial relation and genuine threat of disclosure)
- In re EPIC Holdings, Inc., 985 S.W.2d 41 (Tex. 1998) (conflict-of-interest rules provide guidelines and relevant considerations)
- Nat’l Med. Enters., Inc. v. Godbey, 924 S.W.2d 123 (Tex. 1996) (definition of adversity and factors for disqualification)
- Spears v. Fourth Court of Appeals, 797 S.W.2d 654 (Tex. 1990) (disqualification is a severe remedy and movant must establish specifics)