Exploring Disqualification of Counsel in Texas: A Balancing of Competing Interests The Fifth Annual Symposium on Legal Malpractice and Professional Responsibility.

Authors

Rebecca Simmons
Manuel C. MaltosFollow

Abstract

Uncertainty over conduct which results in disqualification can be costly and the laws relating to disqualification may be widely known but their application is difficult. Rigid application of irrebuttable presumptions and imputation of knowledge may result in disqualification of a client’s chosen counsel. Even if an attorney succeeds in opposing a motion to disqualify, the resulting costs and delay may damage the attorney-client relationship more than if the attorney had simply declined the representation. Motions to disqualify usually arise from conflicts of interest involving former clients. The law of disqualification, in this instance, is well developed and largely based on the “substantial relationship” test. Under the substantial relationship test, the party seeking disqualification must prove the factual matters in a prior attorney-client relationship are substantially related to the facts of the pending litigation. This means the matters are substantially related if there is a genuine threat that confidences disclosed to a former counsel will be revealed to the party’s current adversary. As a means to balance the important competing interests, the Texas Supreme Court requires strict adherence to an “exacting standard” when evaluation such motions. While Texas courts are not usually where disciplinary proceedings take place, the Texas Supreme Court has held trial courts have a duty to regulate the legal profession when appropriate via the Texas Disciplinary Rules of Professional Conduct (the Rules). The goal of the Rules is to define the minimum standard of conduct, making them merely advisory in disqualification proceedings. Nevertheless, the Rules are the preeminent source for attorney disqualification. Yet, the core of analysis for a motion to disqualify is the juxtaposition between the attorney and the moving party, balanced between considerations of protecting client confidences and the right to retain chosen counsel.

Publisher

St. Mary's University School of Law

Recommended Citation

Rebecca Simmons & Manuel C. Maltos, Exploring Disqualification of Counsel in Texas: A Balancing of Competing Interests The Fifth Annual Symposium on Legal Malpractice and Professional Responsibility., 37 St. Mary's L.J. (2006).
Available at: https://commons.stmarytx.edu/thestmaryslawjournal/vol37/iss4/4