In re Eugene Englehardt, Jr--Appeal from 387th District Court of Fort Bend County

Opinion issued September 11, 2006

In The

Court of Appeals

For the

First District of Texas

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NO. 01 05 01169 CV

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IN RE EUGENE ENGLEHARDT, JR., Relator

Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINIONRelator Eugene Englehardt, Jr. filed a petition for a writ of mandamus, complaining of Judge Kern s (1) November 14, 2005 order granting a motion to disqualify relator s lawyer, Lonnie Foster, and (2) a December 1, 2005 order denying a motion for reconsideration. // The real party in interest, Karen R. Englehardt, moved to disqualify relator s lawyer, Lonnie Foster, because she had met with him twice while looking for a lawyer to represent her in her divorce from relator, and she claimed she disclosed confidential information to Foster.

Texas Disciplinary Rule of Professional Conduct 1.09(a)(3) prohibits a lawyer from representing a former client in a matter adverse to the former client if it is the same matter. Furthermore, Rule 1.05(b)(3) prohibits a lawyer from using confidential information of a former client to the disadvantage of the former client without consent. Texas Rule of Evidence 503(a)(1) defines the word client to include a person who consults a lawyer with a view to obtaining professional legal services from that lawyer. In filing a motion to disqualify, a party is not required to reveal the confidences that she wishes to protect. NCNB Tex. Nat l Bank v. Coker, 765 S.W.2d 398, 400 (Tex. 1989).

The trial court conducted a hearing, and conflicting evidence was admitted concerning whether Karen Englehardt disclosed confidential information to Foster. Significant evidence included a client information sheet that she signed containing the following:

The initial consultation is not intended to establish an attorney client relationship. It is to meet each other and see what type of case is involved and see if you wish to retain this office.

Any confidential matter which might involve the attorney/client privilege should be delayed until you have retained this office.

Despite the information sheet s suggestion, Karen Englehardt testified that she discussed specific information with Foster about the potential divorce, she believed the information was confidential, and no one warned her not to disclose confidential information. Although Foster at one point testified that he did not discuss confidential or privileged information with Karen Englehardt, he was less definite in the following exchange:

QAnd there certainly could have been confidential information that was discussed between you and Ms. Englehardt that wasn t listed on your notes, correct?

AI don t know. I don t recall any confidential information. I just -- I don t think there was.

QOkay.

AI mean, usually there s not.

We acknowledge that disqualification of a party s lawyer is a severe remedy and that courts must not allow disqualification to be used as a dilatory tactic. See Coker, 765 S.W.2d at 399 400. After reviewing the conflicting evidence, however, we cannot say that the trial judge abused his discretion in finding that Karen Englehardt disclosed confidential information to Foster.

We deny the petition for a writ of mandamus.

PER CURIAM

Panel consists of Chief Justice Radack and Justices Taft and Nuchia.