Opinion issued October 13, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-15-00495-CV
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IN THE INTEREST OF KIMBERLEY TRIMMER-DAVIS, Relator
Original Proceeding on Petition for Writ of Mandamus
MEMORANDUM OPINION
By petition for writ of mandamus, 1 Kimberley Trimmer-Davis challenges
the trial court’s January 14, 2015 order disqualifying the Ogg Law Firm and Kim
K. Ogg from representing Trimmer-Davis in her discrimination and retaliation
lawsuit against the City of Houston. Trimmer-Davis asserts that the trial court
1
The underlying case is Kimberley R. Trimmer-Davis v. City of Houston, cause
number 2010-11410, pending in the 295th District Court of Harris County, Texas,
the Honorable Caroline Baker presiding.
abused its discretion because there is no disqualifying conflict of interest and
because the City failed to show actual prejudice. We conditionally grant the
petition for writ of mandamus.
Background
Trimmer-Davis, a former employee of the Houston Police Department
(“HPD”), sued the City, alleging that she was discriminated against because of her
female gender and retaliated against when she complained about the
discrimination. During the course of the lawsuit, Trimmer-Davis deposed one of
her former supervisors who allegedly participated in the discrimination and
retaliation, Captain Dwayne Ready. At the time of Ready’s deposition, Trimmer-
Davis was represented by ChiQuia Roberson. Trimmer-Davis later engaged Kim
K. Ogg and the Ogg Law Firm to represent her.
After Ready was served a trial subpoena that indicated that Trimmer-Davis
was represented by Ogg, the City moved to disqualify Ogg and her firm, alleging
that she had previously represented Ready. Specifically, the City alleged in its
motion that Ready had consulted Ogg in 2008 in connection with a disciplinary
action that he was facing at that time.
The City attached Ready’s affidavit to its motion, in which he averred:
In September 2008, I consulted with Ms. Ogg seeking legal advice
concerning a matter for which I received [a] 90-day temporary
suspension in 2008. I paid Ms. Ogg $250 for her legal services for
consulting with me regarding this matter. My communications with
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Ms. Ogg were confidential, and were made for the purpose of seeking
legal advice from Ms. Ogg in connection with that matter.
The City’s position was that Ready was Ogg’s former client as a result of this
consultation, and that pursuant to Rules 1.05, 1.06, and 1.09 of the Texas
Disciplinary Rules of Professional Conduct,2 Ogg should be disqualified from
representing Trimmer-Davis because Ogg planned to impeach Ready with
evidence of his 2008 discipline. There was no allegation that the facts giving rise
to Ready’s 2008 suspension—which was imposed because of his failure to report
outside work—was in any way related to the facts giving rise to Trimmer-Davis’s
claims.
Trimmer-Davis filed a response to the City’s motion arguing that the City
had not established prejudice or shown a disqualifying conflict of interest. She
attached an affidavit from Ogg, in which Ogg stated that she did not recall a
consultation with Ready, but that she concluded from the fact that the City
produced a $250 check from Ready to her, that she must have met with Ready for a
“preliminary consultation,” which lasted no more than one hour. She also testified
that, to the extent she was aware of the allegations giving rise to the disciplinary
action against Ready—“double dipping” or working extra jobs while on the clock
with HPD—she learned of those facts from a newscast by Channel 13 investigative
2
See TEX. DISCIPLINARY RULES PROF’L CONDUCT R. 1.05, 1.06, 1.09, reprinted in
TEX. GOV’T CODE ANN., tit. 2, subtit. G, app. A (West 2013).
3
reporter, Wayne Dolcefino. Ogg speculated that she probably discussed with
Ready the “pros and cons of appealing his anticipated punishment,” because she
had previously represented two other police officers in similar appeals. She
believed that “Captain Ready may have sought advice on the arbitration appeal
process for the purpose of determining whether or not to appeal.”
Ultimately, Ready accepted a 90-day suspension for the unreported outside
work and did not file an appeal. Ready, although designated as a witness in the
trial, has not intervened to assert any attorney-client privilege between himself and
Ogg. He did, however, provide the affidavit that was attached to the City’s
motion.
Without an evidentiary hearing, the trial court granted the motion to
disqualify. Trimmer-Davis then filed this original proceeding to challenge the trial
court’s order disqualifying Ogg and her firm.
Discussion
In several related issues, Trimmer-Davis contends the trial court abused its
discretion in disqualifying Ogg and her firm and that Trimmer-Davis has no
adequate remedy by appeal.
A. Standard of Review and Law on Disqualification
“Mandamus relief is proper to correct a clear abuse of discretion when there
is no adequate remedy by appeal.” In re Frank Motor Co., 361 S.W.3d 628, 630
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(Tex. 2012) (orig. proceeding). “A trial court abuses its discretion if it reaches a
decision so arbitrary and unreasonable as to constitute a clear and prejudicial error
of law, or when it acts without reference to any guiding rules or principles.” In re
Tex. Windstorm Ins. Ass’n, 417 S.W.3d 119, 128–29 (Tex. App.—Houston [1st
Dist.] 2013, orig. proceeding) (internal citations omitted). A trial court has no
discretion in determining what the law is or in applying the law to the facts. In re
Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004) (orig. proceeding).
“Mandamus is appropriate to correct an erroneous order disqualifying counsel
because there is no adequate remedy by appeal.” In re Sanders, 153 S.W.3d 54, 56
(Tex. 2004) (orig. proceeding).
“Disqualification of a party’s counsel is ‘a severe remedy.’” In re Tex.
Windstorm, 417 S.W.3d at 129 (quoting In re Nitla S.A. de C.V., 92 S.W.3d 419,
422 (Tex. 2002) (orig. proceeding)). “It can result in immediate and palpable
harm, disrupt trial court proceedings, and deprive a party of the right to have
counsel of choice.” In re Nitla, 92 S.W.3d at 422. “Disqualification can delay
proceedings in the trial court, require the client to engage a successor attorney, and,
in appropriate cases, deprive the client of work product done on his behalf by the
disqualified attorney.” In re Tex. Windstorm, 417 S.W.3d at 129 (citing In re
George, 28 S.W.3d 511, 515, 518–19 (Tex. 2000) (orig. proceeding)). “Because of
the serious consequences of disqualification of opposing counsel, such motions can
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be misused for delay or to exert inappropriate leverage to force a settlement.” Id.
“The law strongly discourages the use of motions to disqualify as tactical weapons
in litigation.” Id.
The movant bears the burden of proof on a disqualification motion. Id.
(citing In re EPIC Holdings, Inc., 985 S.W.2d 41, 60 (Tex. 1998) (orig.
proceeding)). “To prevent the abusive filing of such a motion for tactical reasons,
the court must carefully evaluate the motion and record to determine if
disqualification is warranted.” Id. (citing In re Nitla, 92 S.W.3d at 422). The trial
court “must strictly adhere to an exacting standard” in ruling on disqualification
motions. NCNB Tex. Nat’l Bank v. Coker, 765 S.W.2d 398, 399 (Tex. 1989) (orig.
proceeding). We review the trial court’s ruling for abuse of discretion. See id. at
400 (trial court’s “failure to apply the proper standard of law to the motion to
disqualify counsel was an abuse of discretion”).
“Although the disciplinary rules are not intended as standards for procedural
decisions, courts often look to them as guidelines in deciding whether to grant a
motion to disqualify counsel.” In re Tex. Windstorm, 417 S.W.3d at 129 (first
citing In re Nitla, 92 S.W.3d at 422; and then citing Nat’l Med. Enters., Inc. v.
Godbey, 924 S.W.2d 123, 132 (Tex. 1996)). “When a movant seeks
disqualification based on an alleged violation of a disciplinary rule, he must carry
the burden to establish the violation with specificity.” Id. (citing Spears v. Fourth
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Court of Appeals, 797 S.W.2d 654, 656 (Tex. 1990). “Mere allegations of
unethical conduct or evidence showing a remote possibility of a violation of the
disciplinary rules” do not satisfy the exacting standard. Spears, 797 S.W.2d at
656. “In addition, the party seeking disqualification based on violation of a
disciplinary rule must also ‘demonstrate that the opposing lawyer’s conduct caused
actual prejudice that requires disqualification.’” In re Tex. Windstorm, 417 S.W.3d
at 129–30 (first quoting In re Nitla, 92 S.W.3d at 422; and then citing In re
Meador, 968 S.W.2d 346, 350 (Tex. 1998) (“a court should not disqualify a lawyer
for a disciplinary violation that has not resulted in actual prejudice to the party
seeking disqualification”)).
B. Former-client conflict
The City’s disqualification motion alleged a former-client conflict. The
applicable Disciplinary Rule of Professional Conduct provides:
Rule 1.09. Conflict of Interest: Former Client
(a) 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:
(1) in which such other person questions the validity of the
lawyer’s services or work product for the former client;
(2) if the representation in reasonable probability will involve a
violation of Rule 1.05; or
(3) if it is the same or a substantially related matter.
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TEX. DISCIPLINARY RULES PROF’L CONDUCT R. 1.09(a). Rule 1.05 provides that a
lawyer shall not knowingly:
(1) Reveal confidential information of a client or a former client to:
(i) a person that the client has instructed is not to receive the information;
or
(ii) anyone else, other than the client, the client’s representatives, or the
members, associates, or employees of the lawyer’s law firm.
(2) Use confidential information of a client to the disadvantage of the client
unless the client consents after consultation.
(3) Use confidential information of a former client to the disadvantage of the
former client after the representation is concluded unless the former client
consents after consultation or the confidential information has become
generally known.
(4) Use privileged information of a client for the advantage of the lawyer or
of a third person, unless the client consents after consultation.
TEX. DISCIPLINARY RULES PROF’L CONDUCT R. 1.05(b).
Although Trimmer-Davis challenges the trial court’s implied finding that
Ogg’s consultation with Ready gave rise to an attorney-client relationship, we do
not reach contested issues of fact in an original mandamus proceeding. See In re
Tex. Windstorm, 417 S.W.3d at 130 (first citing In re Pirelli Tire, L.L.C., 247
S.W.3d 670, 686 (Tex. 2007) (orig. proceeding); and then citing In re Angelini,
186 S.W.3d 558, 560 (Tex. 2006) (orig. proceeding)). For purposes of this
mandamus review, we assume without deciding that Ready is Ogg’s former client.
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1. Is Ogg’s representation of Trimmer-Davis “a matter adverse” to
Ready?
A “fundamental precondition” to the application of Rule 1.09 is that the
lawyer is representing a client in a matter adverse to the former client. In re Tex.
Windstorm, 417 S.W.3d at 130; see TEX. DISCIPLINARY RULES PROF’L CONDUCT R.
1.09(a); see also R. 1.09 cmt. 2 (Rule 1.09 “concerns the situation where a lawyer
once personally represented a client and now wishes to represent a second client
against that former client”). The City contends that Trimmer-Davis’s suit is “a
matter adverse” to Ready because Trimmer-Davis alleges that Ready was involved
in the discrimination and retaliation against her. We conclude that Ogg’s
representation of Trimmer-Davis is not adverse to Ready “in any relevant sense”
for purposes of Rule 1.09. See In re Tex. Windstorm, 417 S.W.3d at 130.
“For purposes of the ethical prohibition of Rule 1.09, adversity has been
described as ‘a product of the likelihood of the risk and the seriousness of its
consequences.’” Id. at 130 (quoting Godbey, 924 S.W.2d at 132). Here, the only
risk to Ready or the City alleged by the City is that Ready’s credibility might be
impeached at trial with evidence that he was previously disciplined for actions
unrelated to those alleged in Trimmer-Davis’s suit. There is no authority to
support the City’s position that impeaching Ready’s credibility with evidence of
his earlier discipline makes Ogg’s representation of Trimmer-Davis adverse to
Ready within the meaning of Rule 1.09.
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The City does not dispute that Ready’s discipline is a matter of public
record. Indeed, were Trimmer-Davis to engage new counsel, that new counsel
would still be able to impeach Ready with evidence of Ready’s discipline. And the
subject of Trimmer-Davis’s suit, alleged gender discrimination and retaliation, is
unrelated to the subject of Ready’s discipline—his reporting of outside work.3
Thus, the City failed to meet its burden to show that Ogg’s representation of
Trimmer-Davis was adverse to Ready as required by Rule 1.09. See In re Tex.
Windstorm, 417 S.W.3d at 129 (“When a movant seeks disqualification based on
an alleged violation of a disciplinary rule, he must carry the burden to establish the
violation with specificity.”). Accordingly, nothing in the mandamus record
demonstrates the adversity required to support the application of Rule 1.09.4 See
id. at 130 (adversity is a “fundamental precondition” to application of Rule 1.09).
3
In its response to the petition for mandamus, the City suggests for the first time
that Ready consulted Ogg as a result of Trimmer-Davis’s complaints of
discrimination and retaliation. The City did not represent to the trial court that the
subject-matter of the consultation was related to Trimmer-Davis’s discrimination
and retaliation claims, and the evidence presented in the trial court was that the
subject of Ready’s consultation was discipline related to his reporting of outside
work.
4
The City also moved to disqualify Ogg and her firm based upon Texas Rule of
Disciplinary Procedure 1.06(b). Rule 1.06(b) pertains to current clients, and the
City did not contend that Ready was a current client of Ogg’s. See TEX.
DISCIPLINARY RULES PROF’L CONDUCT R. 1.06(b). But regardless, Rule 1.06(b),
like Rule 1.09, requires adversity. See id.
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2. Did the City demonstrate prejudice?
Even if the City had met its burden to show that Rule 1.09 applied, as a non-
client movant, the City bore the burden to show actual prejudice to support the
severe remedy of attorney disqualification. See Coker, 765 S.W.2d at 400; In re
Tex. Windstorm, 417 S.W.3d at 133–34. Nothing in the mandamus record suggests
that Ogg or her firm possesses any information as a result of her representation of
Ready that will actually prejudice the City. The fact that Ready may be impeached
with evidence of his discipline—a matter of public record—does not demonstrate
that the City will suffer actual prejudice, particularly in light of the fact that
Trimmer-Davis’s new lawyer would also be able to impeach Ready with this
evidence. The City did not identify any other consequence of Ogg’s representation
of Trimmer-Davis. Thus, no actual prejudice to the City has been shown so as to
justify disqualification pursuant to Rule 1.09. See, e.g., In re Tex. Windstorm, 417
S.W.3d at 133 (non-client movants did not meet burden to justify disqualification
pursuant to Rule 1.09 where mandamus record did not show actual prejudice to
them).
Accordingly, we hold that the trial court abused its discretion in granting the
City’s motion to disqualify.
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Conclusion
We conditionally grant Trimmer-Davis’s petition for writ of mandamus and
direct the trial court to vacate its order granting the motion to disqualify and enter
an order denying the motion to disqualify. We are confident the trial court will
promptly comply, and our writ will issue only if it does not.
Rebeca Huddle
Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
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