dissenting.
I respectfully dissent.
The majority seems to give no weight to the trial court’s express findings that:
5. Fred Davis hired Orsak to represent him in a divorce action against Suzanne Davis.
9. Fred Davis did not waive his right to assert his claim of conflict of interest that prevents Orsak’s firm from representing Suzanne Davis in a divorce action against Fred Davis.
In my opinion, the outcome of this case is governed by Supreme Court op Texas, State Bar Rules art. X, § 9 (Texas Disciplinary Rules of Professional Conduct) Rule 1.09(a), (b) (1992), and the cases construing rule 1.09 and its predecessor rules.1 Suzanne Davis (the wife) does not question the validity of the finding that Fred Davis (the husband) actually hired Orsak to represent him in his divorce action against the wife.
Rule 1.09(a) and (b) provides:
(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) if it is the same or a substantially related matter;
(2) in which such other person questions the validity of the lawyer’s services or work product for the former client; or
(3) if the representation in reasonable probability will involve a violation of Rule 1.05.
(b) Except to the extent authorized by Rule 1.10, when lawyers are or have become members of or associated with a firm none of them shall knowingly represent a client if any one of them practicing alone would be prohibited from doing so by paragraph (a).
Tex. Disciplinary Rules of Prop. Conduct, Rule 1.09(a) and (b) (1992) (emphasis added). Comment 3 to the rule states in part:
Although paragraph (a) does not absolutely prohibit a lawyer from representing a client against a former client, it does provide that the latter representation is improper if any of the three cir*285cumstances exist, except with prior consent. The first prohibition is against representation adverse to a former client if it is the same or a substantially related matter.
The majority opinion concludes that, as a matter of law, the second divorce proceeding was substantially related to the first proceeding. Likewise, in my opinion, there can be no question that the firm’s representation of the husband with regard to the second divorce proceeding, and the firm’s representation of the wife in connection with the same second divorce proceeding, constituted representation of both parties in the same or substantially related matter.
Once the party moving for disqualification of an attorney under rule 1.09 proves a prior attorney-client relationship, and clearly establishes that the matters involved in the pending suit are substantially related to the matters involved in the former representation, the moving party is entitled to a conclusive and irrebuttable presumption that he imparted confidences and secrets to the former attorney. Clark v. Ruffino, 819 S.W.2d 947 (Tex.App.—Houston [14th Dist.] 1991, orig. proceeding) (not yet reported); Insurance Co. of North America v. Westergren, 794 S.W.2d 812, 815 (Tex.App.—Corpus Christi 1990, orig. proceeding); Howard v. Texas Dept. of Human Services, 791 S.W.2d 313, 315 (Tex.App.—Corpus Christi 1990, no writ). See also Arkla Energy Resources v. Jones, 762 S.W.2d 694, 695 (Tex.App.—Texarkana 1988, orig. proceeding). In such a case, the moving party will also have established, as a matter of law, that an appearance of impropriety exists and, although the former attorney will not be presumed to have imparted the confidences to his present client, the trial court should, in its proper function as internal regulator of the legal profession, disqualify counsel from any further representation in the pending suit. NCNB Texas Nat’l Bank v. Coker, 765 S.W.2d 398, 400 (Tex.1989); Howard, 791 S.W.2d at 315.
In my opinion, the trial court did not abuse its discretion in the present case. I would deny leave to file the petition for writ of mandamus.
. The majority discusses rule 1.09 only as it relates to relator, the wife, as the “former client"; the majority does not recognize that Fred Davis is also a "former client.” In my opinion, the majority’s reliance on rules 1.05 and 1.06 is misplaced.