IN THE
TENTH COURT OF APPEALS
No. 10-14-00206-CV
IN THE MATTER OF THE MARRIAGE OF
KENNETH BEAIRD AND ELIZABETH BEAIRD,
From the 13th District Court
Navarro County, Texas
Trial Court No. D12-21779-CV
ORDER
Appellant Elizabeth Beaird is appealing from the final decree of divorce between
her and Appellee Kenneth Beaird. In her notice of appeal, she indicates her intent to
challenge an interlocutory order disqualifying her trial counsel, Afton Jane Izen, which
became final when the trial court signed the final decree of divorce.
Kenneth has filed a motion to disqualify Elizabeth’s appellate counsel, Joe Izen,
Jr., alleging that Izen’s prior representation of him in a substantially related matter
creates a conflict of interest that he has not waived.1
1 In her response to Kenneth’s motion to disqualify her appellate counsel, Elizabeth makes several
arguments for why we should reverse the trial court’s order disqualifying her trial attorney. Our analysis
Texas Disciplinary Rule of Professional Conduct 1.09 states in relevant part:
“Without prior consent, a lawyer who personally has formerly represented a client in a
matter shall not thereafter represent another person in a matter adverse to the former
client … if it is the same or a substantially related matter.” TEX. DISCIPLINARY RULES
PROF’L CONDUCT R. 1.09(a)(3), reprinted in TEX. GOV’T CODE ANN. tit. 2, subtit. G, app. A
(West 2013) (TEX. STATE BAR R. art. X, § 9). Although the term “substantially related” is
not defined by the Rule, “it primarily involves situations where a lawyer could have
acquired confidential information concerning a prior client that could be used either to
that prior client’s disadvantage or for the advantage of the lawyer’s current client or
some other person.” Id. cmt. 4B. “Confidential information” includes both “privileged
information” and “unprivileged client information.” Id. 1.05(a). “Unprivileged client
information” includes “all information relating to a client or furnished by the client,
other than privileged information, acquired by the lawyer during the course of or by
reason of the representation of the client.” Id.
Kenneth’s affidavit, attached to his reply to Elizabeth’s response to his motion to
disqualify, states as follows: In May 1996, he consulted with Tommy Westmoreland at
the Law Office of Joe Izen, Jr., about filing a divorce. He hired Izen’s office to assist
him. They drafted a petition, waiver of service for his wife to sign, and the final decree
of divorce. Kenneth filed the petition pro se in May 1996 in In the Matter of the Marriage
of Kenneth James Beaird and Vennita Kaye Beaird, Cause No. 96-00-06480-CV. When
and ruling in this order is limited, however, to Kenneth’s motion to disqualify Elizabeth’s appellate
counsel.
In re Marriage of Beaird Page 2
consulting with Izen’s office, he divulged certain information about his property. That
property is largely the same property at issue in this divorce. He has not waived the
conflict of interest.
Elizabeth argues that this appeal is not the “same or a substantially related
matter” to Kenneth’s previous divorce proceeding. Specifically, Elizabeth claims that
Kenneth has not established or indicated how Izen’s continued participation in this
appeal would violate any alleged confidences that Kenneth imparted to him in the prior
proceeding. Elizabeth asserts that the mere fact that Kenneth owned some of the same
separate property during his marriage to her that he owned during earlier marriages is
not enough.
But when a lawyer works on a matter, there is an irrebuttable presumption that
the lawyer obtained confidential information during the representation. In re Guar. Ins.
Servs., Inc., 343 S.W.3d 130, 134 (Tex. 2011) (orig. proceeding). And Elizabeth does not
challenge Kenneth’s statement that Izen’s firm formerly assisted Kenneth in filing a pro
se petition in a previous divorce proceeding. Izen therefore could have acquired
confidential information concerning Kenneth during the previous divorce proceeding
that could be used either to Kenneth’s disadvantage or for Elizabeth’s advantage in this
appeal from the final decree of divorce between Kenneth and Elizabeth. We thus
conclude that this proceeding is substantially related to Kenneth’s previous divorce
proceeding.
Kenneth’s motion to disqualify Elizabeth’s appellate counsel, Joe Izen, Jr., is
granted. All other pending motions are dismissed as moot.
In re Marriage of Beaird Page 3
Because of the disqualification of Elizabeth’s appellate counsel, her appellant’s
brief is due 60 days from the date of this order.
PER CURIAM
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
(Chief Justice Gray dissenting with a note)*
Order issued and filed January 22, 2015
Do not publish
* (Chief Justice Gray dissents. A separate opinion or order will not follow. He
notes, however, that the alleged disclosure of confidential information being imputed to
Joe Izen, Jr. is from a prior divorce almost 20 years ago.)
In re Marriage of Beaird Page 4