ACCEPTED
01-15-00016-cv
FIRST COURT OF APPEALS
HOUSTON, TEXAS
2/9/2015 1:18:33 PM
CHRISTOPHER PRINE
CLERK
NO.01-15-0016-CV
IN THE COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS HOUSTON, TEXAS
2/9/2015 1:18:33 PM
__________________________________________________________________
CHRISTOPHER A. PRINE
In re Texas Technical Services, Inc. Clerk
Relator
__________________________________________________________________
RELATOR’S REPLY BRIEF
Original Proceeding from Cause No. 2014-16785
Parking Guidance Systems, LLC v. Texas Technical Services, Inc.
In the 133rd Judicial District Court of Harris County, Texas
__________________________________________________________________
LAMBRIGHT & ASSOCIATES
Casey Jon Lambright
State Bar No. 00794136
Andrew J. Mihalick
State Bar No. 24046439
2603 Augusta, Suite 1100
Houston, Texas 77057
(713) 840-1515
(713) 840-1521 (FAX)
ATTORNEYS FOR RELATOR
TEXAS TECHNICAL
SERVICES, INC.
Page 1 of 15
NO.01-15-0016-CV
IN THE COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS
HOUSTON, TEXAS
__________________________________________________________________
In re Texas Technical Services, Inc.
Relator
__________________________________________________________________
RELATOR’S REPLY BRIEF
TO THE HONORABLE JUSTICES OF THIS COURT:
COMES NOW, Relator TEXAS TECHNICAL SERVICES, INC. (“TTSI”),
filing its Reply to Respondent PARKING GUIDANCE SYSTEMS, LLC’s
(“PGS”) Response to Its Petition for Writ of Mandamus, and respectfully shows as
follows:
PGS Misses the Point and Misstates the Law
Of Course Mandamus Lies for Improper Attorney Disqualifications
To begin with, PGS goes so far as to argue that mandamus is not available in
cases of attorney disqualification even though virtually every case cited in TTSI’s
brief is a mandamus case wherein a lower court’s attorney disqualification order
was reversed or severely circumscribed.1 That PGS would spend more than two
pages attempting to argue to this Court that mandamus is not available in this
instance demonstrates the type of cavalier advocacy that resulted in the improper
disqualification order in the first place, and the concomitant waste of time, money
1
TTSI’s Petition, pp. 31-40.
Page 2 of 15
and judicial resources attributable to its purely tactical behavior. PGS cites no
cases to support the proposition that mandamus is not available in this instance 2—
because there are none.
PGS’ Selective Citation of Some Rule 3.08 Comments and
Misstatement of Prevailing Case Law is Unavailing
In its attempt to bolster the lower court’s improper disqualification order,
PGS ignores the express limitations of Rule 3.08 set by stare decisis, the very text
of the Rule, and the comments thereto.3 PGS also ignores the Texas Supreme
Court cases and binding precedent from this and the Fourteenth District cited by
TTSI that clearly establish that the lower court’s order is improper. Instead, PGS
relies on disingenuous citations to case law lacking precedential authority to
support a premise that is not even addressed by Rule 3.08.4
PGS Misstates Leyendecker
A primary case PGS cites to support the lower court’s disqualification order
is this Court’s In re Leyendecker decision, which should be should be well known
by members of this panel.5 Leyendecker also resulted in the overturning of a
disqualification order:
We hold that Diana's request for disqualification did not meet the
exacting standards by which motions to disqualify opposing counsel
2
E.g., Respondent’s Response at p. 18.
3
See Respondent’s Response Brief, pp. 19-20.
4
E.g., Respondent’s Response Brief at pp. 20-22.
5
Respondent’s Response Brief, p. 20.
Page 3 of 15
must be judged, and that the trial court's order disqualifying Gross
from serving as Charles's attorney constitutes an abuse of discretion
for which there is no adequate remedy by appeal. Accordingly, we
direct the trial court to vacate its order disqualifying Gross from
representing Charles in the underlying proceeding. Our writ of
mandamus will issue only if the trial court does not comply. 6
Preliminarily, Leyendecker is one of a litany of cases that unequivocally
states that mandamus is available to challenge a trial court’s order disqualifying a
party’s legal counsel.7 The Leyendecker decision also shows just how exacting the
standard is to disqualify an opposing party’s counsel.8 In Leyendecker, this Court
reversed the lower court’s disqualification order even though (1) the disqualified
attorney invoked none of the exceptions to the general rule of 3.08, and (2) the
lower court held a full evidentiary hearing in which the challenged attorney and the
challenging party both testified and provided evidence.9
Unlike in Leyendecker, the lower court in the instant case followed no
“exacting standards” in disqualifying TTSI’s counsel. 10 PGS adduced no
competent evidence to prove that TTSI’s counsel (and their entire law firm) may
be a witness necessary to establish an essential fact on TTSI’s (its client’s) behalf,
or that TTSI’s counsel’s purported testimony relates to a contested issue.11
Furthermore, PGS made no evidentiary showing to win such relief, nor did the
6
In re Leyendecker, 2012 Tex. App. LEXIS 6581 at *11.
7
Id. at ** 3-4 (stating as much under the first headnote).
8
Id.
9
Id. At **3-10.
10
TTSI’s Petition, pp. 24-30.
11
Id.
Page 4 of 15
lower court conduct an evidentiary hearing or make any findings of fact at any
time prior to disqualifying counsel.12 Instead, PGS argues that because it wishes to
call TTSI’s attorneys as witnesses concerning pre-lawsuit demands they made on
behalf of TTSI prior to suing PGS and its principals in another lawsuit predating
the instant one, TTSI’s counsel (and their entire law firm) must be disqualified. 13
PGS’ topsy-turvy attempt to misapply Rule 3.08 to the facts of this case
notwithstanding, the lower court’s lack of compliance with the “exacting
standards” appurtenant to disqualifying attorneys under Rule 3.08 establishes that
the disqualification order was an abuse of discretion that must be rectified.
PGS Skips Over the Controlling Facts of Mauze v. Curry
PGS cites Mauze, an extremely short Texas Supreme Court opinion, as a
case that supports the abject disqualification of attorneys who become witnesses.14
However, Mauze was a case where the attorney to be disqualified was the sole
provider of essential evidence on behalf of his client; the challenging party did not
seek to elicit evidence from him, as PGS has done here, so as to disqualify him
from the case. 15
12
Id.
13
Id. at pp. 12-19.
14
Respondent’s Response Brief at p. 21.
15
Mauze v. Curry, 861 S.W. 2d 869, 870 (Tex. 1993).
Page 5 of 15
Again, PGS incorrectly argues that TTSI’s attorneys should be disqualified
because PGS wants to call them to testify to facts needed by PGS. 16 This is not the
Rule 3.08 standard. 17 Because neither TTSI nor its counsel seek to provide any
essential evidence in this case on TTSI’s behalf, nor is any testimony by TTSI’s
attorneys necessary to establish facts essential to TTSI, Rule 3.08 arguably does
not even apply.
Nonetheless, as discussed in pages 37 through 42 of TTSI’s Petition, pre-suit
communications between TTSI’s counsel and others, alone, do not establish PGS’
tortious interference claim and TTSI’s counsel are not the only sources of such
evidence.18 Furthermore, PGS has the burden to prove other elements of its
tortious interference claim—such as an underlying contract/relationship, causation
and damages—that have nothing to do with TTSI’s counsel.19 This is fatal to not
only to the disqualification of TTSI’s counsel, but to PGS’ entire case.
16
Respondent’s Response Brief, at p. 20-22.
17
TTSI’s Petition, pp. 32-40.
18
For example, PGS could always depose or call as witnesses the recipients of the complained of
communications who ultimately ceased any business relations with PGS purportedly as a result
of said communications. TTSI’s attorneys are not the sole possessors of such “evidence.” In any
event, PGS also needs to show causation and damages, which it cannot do with the testimony of
TTSIs attorneys. See TTSI’s Petition, 17-24, 39.
19
See TTSI’s Petition, pp. 37-40.
Page 6 of 15
The Lower Court’s Wholesale Disqualification of
TTSI Attorneys is Against the Great Weight of
Precedential Authority, Not to Mention Rule 3.08 Itself
What PGS cannot explain or hope to support is the lower court’s summary
disqualification of the entire firm representing TTSI whole hog, well before any
portion of this case will go before a jury (if it ever gets that far, giving the
underlying claims and TTSI’s unassailable defenses). Specifically, comments 5, 8,
9 and 10 to Rule 3.08, which are embodied in the cases cited by TTSI on pages 31-
40, instruct that such wholesale attorney disqualification is improper. 20 The lower
20
Comments 5, 8 and 9 state as follows:
5. Paragraph (a)(1) recognizes that if the testimony will be uncontested, the
ambiguities in the dual role are purely theoretical. Paragraph (a)(2) recognizes
that similar considerations apply if a lawyer’s testimony relates solely to a matter
of formality and there is no reason to believe that substantial opposing evidence
will be offered. In each of those situations requiring the involvement of another
lawyer would be a costly procedure that would serve no significant countervailing
purpose.
8. This rule does not prohibit the lawyer who may or will be a witness from
participating in the preparation of a matter for presentation to a tribunal. To
minimize the possibility of unfair prejudice to an opposing party, however, the
Rule prohibits any testifying lawyer who could not serve as an advocate from
taking an active role before the tribunal in the presentation of the matter. See
paragraph (c). Even in those situations, however, another lawyer in the testifying
lawyer’s firm may act as an advocate, provided the client’s informed consent is
obtained.
9. Rule 3.08 sets out a disciplinary standard and is not well suited to use as a
standard for procedural disqualification. As a disciplinary rule it serves two
principal purposes. The first is to insure that a client’s case is not compromised by
Page 7 of 15
court’s summary disqualification of the entire law firm of TTSI’s long time legal
counsel under the facts herein presented is a clear abuse of discretion. 21
Below, and in the instant proceedings, PGS fails to address why comments
5, 8, 9 and/or 10, or the prevailing law governing the applicable exceptions to
attorney disqualifications pursuant to Rule 3.08, do not apply in this case.
Comment 9 to the Rule, which is cited in virtually every case on this issue, should
control the outcome of this issue:
Rule 3.08 sets out a disciplinary standard and is not well suited to use
as a standard for procedural disqualification. As a disciplinary rule it
serves two principal purposes. The first is to insure that a client’s case
being represented by a lawyer who could be a more effective witness for the client
by not also serving as an advocate. See paragraph (a). The second is to insure that
a client is not burdened by counsel who may have to offer testimony that is
substantially adverse to the clients cause. See paragraph (b).
10. This Rule may furnish some guidance in those procedural disqualification
disputes where the party seeking disqualification can demonstrate actual prejudice
to itself resulting from the opposing lawyers service in the dual roles. However,
it should not be used as a tactical weapon to deprive the opposing party of the
right to be represented by the lawyer of his or her choice. For example, a lawyer
should not seek to disqualify an opposing lawyer under this Rule merely because
the opposing lawyer’s dual roles may involve an improper conflict of interest with
respect to the opposing lawyer’s client, for that is a matter to be resolved between
lawyer and client or in a subsequent disciplinary proceeding. Likewise, a lawyer
should not seek to disqualify an opposing lawyer by unnecessarily calling that
lawyer as a witness. Such unintended applications of this Rule, if allowed, would
subvert its true purpose by converting it into a mere tactical weapon in litigation.
21
Notably, the hardship imposed on a client by such an attorney-witness forms an exception to
the general disqualification “rule.” TEX. R. PROF’L CONDUCT 3.08 § (a) (5). Most of the cases
cited by PGS resulted in reversal of disqualification orders and in fact support reversal in this
case as well. E.g., In re Leyendecker,2012 Tex. App. LEXIS 6581.
Page 8 of 15
is not compromised by being represented by a lawyer who could be a
more effective witness for the client by not also serving as an
advocate. See paragraph (a). The second is to insure that a client is not
burdened by counsel who may have to offer testimony that is
substantially adverse to the clients cause. See paragraph (b). 22
Neither of the two purposes cited in comment 9 to Rule 3.08 are being served by
disqualifying TTSI’s attorneys and their entire law firm.
Furthermore, no one contends that TTSI needs its legal counsel (or their
firm) to establish an essential fact on their behalf—rather, PGS argues that PGS
needs TTSI’s testimony to establish a fact on PGS’ behalf. Rule 3.08 does not
even address this scenario, except for the proscription provided in comment 10:
However, it should not be used as a tactical weapon to deprive the
opposing party of the right to be represented by the lawyer of his or
her choice. For example, a lawyer should not seek to disqualify an
opposing lawyer under this Rule merely because the opposing
lawyer’s dual roles may involve an improper conflict of interest with
respect to the opposing lawyer’s client, for that is a matter to be
resolved between lawyer and client or in a subsequent disciplinary
proceeding. Likewise, a lawyer should not seek to disqualify an
opposing lawyer by unnecessarily calling that lawyer as a witness.
Such unintended applications of this Rule, if allowed, would subvert
its true purpose by converting it into a mere tactical weapon in
litigation. 23
22
TEX. R. PROF’L CONDUCT 3.08, cmt. 9 (emphasis added).
23
Id. at cmt. 10 (emphasis added).
Page 9 of 15
Given that PGS’ argument for disqualification fails to even facially meet the
preliminary dictate of Rule 3.08 and the governing cases,24 how could the trial
court’s disqualification not be an abuse of discretion? Certainly not pursuant to
PGS’ argument, without citation to authority, that “Texas courts have routinely
disqualified attorneys who attempt to serve as advocate and witness...” 25 and
therefore the same rote mandate should be applied under the facts of this case.
Conclusion
If the purpose behind Rule 3.08 disqualifications is to prevent juror
confusion and to reduce conflicts of interest between a lawyer and its client, 26 then
how does disqualifying an entire law firm well before any proceedings before a
jury will take place based solely on the movant’s request fulfill that purpose? Quite
simply, it does not.
Importantly, the events giving rise to TTSI’s claims against PGS and its
principals in the 129th case, which predate the instant suit, gave rise to PGS’
scheme to divorce TTSI from its counsel now before the Court. 27 Furthermore,
given that PGS’ entire complaint is based on purportedly tortious communications,
it is self-evident that one could elicit testimony and evidence from parties to those
24
E.g., Respondent’s Response Brief at pp. 23-25; TEX. R. PROF’L CONDUCT 3.08 (a).
25
Respondent’s Response Brief at p.p. 20-21.
26
E.g., see Respondent’s Brief at p. 21.
27
TTSI’s Petition, pp. 12-19.
Page 10 of 15
communications other than TTSI’s lawyers. Reviewing these matters globally, it is
abundantly clear that PGS’ underlying suit in the 133rd District Court, and its
campaign to disqualify TTSI’s counsel, is purely tactical and nothing more.
In a nutshell, TTSI’s Petition for Writ of Mandamus is essentially
unchallenged, given that none of the cases cited by PGS say what PGS wants them
to say. In fact, the cases are in agreement that wholesale disqualification of
counsel, as the lower court ordered in this case, without PGS’ meeting its burden
of proof and without the lower court holding an evidentiary proceeding, is an abuse
of discretion mandating reversal. There is nothing to substantiate the proposition
that PGS met its burden of proof to obtain the wholesale disqualification of
counsel, or that the lower court was within its discretion in disqualifying TTSI’s
counsel and its law firm from any representation in this case.
Because the lower court’s decision to disqualify counsel was made without
reference to any guiding rules or principals and without PGS adducing any
competent evidentiary support (when it bore the ultimate burden of proof), the
disqualification order was clearly an abuse of discretion for which TTSI has no
adequate remedy on appeal. At the very least, TTSI’s counsel should be permitted
to participate in pretrial matters before the Court and outside the presence of the
jury.
Page 11 of 15
PRAYER
FOR THESE REASONS, Defendant TEXAS TECHICAL SERVICES, INC.,
respectfully requests that the Court grant its Petition for Mandamus and vacate
Judge McFarland’s order disqualifying the firm of Lambright & Associates from
representing TTSI in the case below; alternately, that this Court instruct Judge
McFarland to revise her disqualification order to permit Lambright & Associates
attorneys to represent TTSI in all matters outside the presence of the jury, and any
other relief to which it shows itself justly entitled.
LAMBRIGHT & ASSOCIATES
/s/ Andrew J. Mihalick
Casey Jon Lambright
State Bar No. 00794136
Andrew J. Mihalick
State Bar No. 24046439
2603 Augusta, Suite 1100
Houston, Texas 77057
(713) 840-1515
(713) 840-1521 (FAX)
ATTORNEYS FOR RELATOR
TEXAS TECHNICAL
SERVICES, INC.
Page 12 of 15
CERTIFICATE OF SERVICE
As required by Texas Rule of Appellate Procedure 6.3 and 9.5(b), (d), (e), I
certify that I have served this document on all other parties, which are listed below,
on February 9, 2015 as follows:
Mark A. Junell
The Junell Law Firm o CM/RRR
100 Waugh Dr., Suite 350 o Facsimile
Houston, Texas 77057 o Regular Mail
(713) 213-1830 (FAX) o Hand Delivery
o Efiling Manager
Attorney for Plaintiff, Parking
Guidance Systems, LLC
Hon. Jaclanel McFarland o Facsimile
133rd Judicial District Court o U.S. Mail
201 Caroline, 11th Floor o CMRRR
Houston, Texas 77001 o Courier/Hand Delivery
o Efiling Manager
Respondent
LAMBRIGHT & ASSOCIATES
/s/ Andrew J. Mihalick
Casey Jon Lambright
State Bar No. 00794136
Andrew J. Mihalick
State Bar No. 24046439
2603 Augusta, Suite 1100
Houston, Texas 77057
(713) 840-1515
(713) 840-1521 (FAX)
ATTORNEYS FOR RELATOR
February 9, 2015
[Date]
Page 13 of 15
CERTIFICATION
I, the undersigned, certify that I have reviewed the petition and conclude that
every factual statement in the petition is supported by competent evidence included
in the appendix or record.
LAMBRIGHT & ASSOCIATES
/s/ Andrew J. Mihalick
Casey Jon Lambright
State Bar No. 00794136
Andrew J. Mihalick
State Bar No. 24046439
2603 Augusta, Suite 1100
Houston, Texas 77057
(713) 840-1515
(713) 840-1521 (FAX)
ATTORNEYS FOR RELATOR
February 9, 2015
[Date]
Page 14 of 15
CERTIFICATE OF COMPLIANCE
As required by Texas Rule of Appellate Procedure 9.4 (i) (3), I certify that
according to the Microsoft word counting function, the foregoing brief consists of
3,057 words excluding the portions outlined in the foregoing rule, and therefore is
within the mandated word limit.
LAMBRIGHT & ASSOCIATES
/s/ Andrew J. Mihalick
Casey Jon Lambright
State Bar No. 00794136
Andrew J. Mihalick
State Bar No. 24046439
2603 Augusta, Suite 1100
Houston, Texas 77057
(713) 840-1515
(713) 840-1521 (FAX)
ATTORNEYS FOR RELATOR
TEXAS TECHNICAL
SERVICES, INC.
February 9, 2015
[Date]
Page 15 of 15