J.K. AND SUSIE L. WADLEY AN ORIGINAL PROCEEDING RESEARCH INSTITUTE AND BLOOD BANK, ET AL. RELATORS, v. JOSEPH B. MORRIS, JUDGE, 101ST JUDICIAL DISTRICT COURT

 
COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-89-00056-CV
 
J.K. AND SUSIE L. WADLEY AN ORIGINAL PROCEEDING
RESEARCH INSTITUTE AND
BLOOD BANK, ET AL.
 
        RELATORS,
 
 
v.
 
 
JOSEPH B. MORRIS, JUDGE,
101ST JUDICIAL DISTRICT COURT
OF DALLAS COUNTY, TEXAS,
 
        RESPONDENT. ON WRIT OF MANDAMUS
 
 
 
BEFORE JUSTICES HOWELL, LAGARDE AND WHITTINGTON
CONCURRING OPINION BY JUSTICE HOWELL
AUGUST 7, 1989
 
        I fully concur in the judgment. I write separately because this is an area where bright lines need to be drawn for the guidance of bench and bar. It is clear that there was no disqualification in this case and we should make a direct holding to this effect.
        In reality, there are two rules of professional conduct that possibly come into play in situations of this nature. The first may appropriately be described as the rule against dual representation. Such rule provides that an attorney may not withdraw his representation of one side of a litigation and thereafter undertake the representation of the opposing side. The second may be aptly called the rule against any representation that is unfair to a former client.
        The rule against dual representation is monolithic and rigorous; it recognizes few exceptions, if any. For a lawyer to switch sides with respect to a pending litigation exposes him to the possible charge that he is unprincipled, without essential loyalty, and interested in money-grubbing rather than justice. If the law permits him to do so, the law itself is exposed to the possible charge that advocacy is little more than the equivalent of prostitution. The rule against dual representation is of ancient origin. Quite possibly, it runs back to the time when lawyers were the knights of the royal court and they were expected to champion the cause of their clients in battle. The rule that no man can serve two masters is at least as old as the Bible. FN:1
        Although the danger that confidences may be breached is inherent in the dual representation situation, an equally cogent basis for the rule is that a lawyer may not be permitted to maneuver himself toward the representation of the more rewarding side of a case. The most affluent litigant may not be permitted to hire away his adversary's lawyer; strict rules must be erected against any such contingency.
        In final analysis the rule is a simple declaration of public policy, a device for the protection of the public concept of the system of justice. The gist of the rule is that a lawyer may not represent adversaries in the same or in substantially similar litigation, either concurrently or successively, even with the express and informed consent of everyone involved.
        In Petroleum Wholesale, Inc. v. Marshall, 751 S.W.2d 295 (Tex. App.--Dallas, 1988, orig. proceeding), this Court extended the rule against dual representation to entire law firms. If during the course of the same litigation, Lawyer I (the lawyer complained about) departs from Firm I, which is involved in the representation of Client I (the offended party), and if Lawyer I then affiliates with Firm II (the firm sought to be disqualified), which is involved in the representation of Client II, an adversary to the same litigation, the mere affiliation between Lawyer I and Firm II acts as an automatic disqualification of Firm II to participate in the litigation. A "Chinese wall" between Lawyer I and Firm II will not remedy the situation. The reason: The rule or policy against dual representation has been breached; public policy forbids the relationship.
        Because the rule against dual representation is rigorously applied, it must have strict limitations. Actual litigation must be involved; without actual litigation, the rule against dual representation is inapplicable. The same or substantially the same cause of action must be involved. The parties must be the same or must be closely affiliated.
        Even though the same or substantially the same litigation must be involved, the contamination period is not strictly limited to the time that the litigation is formally pending. It should properly begin when Client I first consults with Firm I with respect to a specific claim or dispute with respect to a particular party. It should continue, at least until the resulting litigation has been fully resolved. During that period, the mere fact that Lawyer I has moved to Firm II operates as an automatic disqualification, not only of Lawyer I himself, but also of his new-found affiliate, Firm II.
        The writer fully agrees with the result in Petroleum, 751 S.W.2d at 295. However, in the view of the writer, the true basis in Petroleum's ruling was not fully recognized. Petroleum should have been bottomed on the rule against dual representation. The discussion of imputed knowledge and presumed prejudice only serves to obscure the fact that the rule against dual representation, as a matter of policy, simply forbade Firm II from continuing to represent Client II after Attorney I came on board.
        Petroleum also stressed the fact that Attorney I "had actual knowledge of the confidences of a former client in a particular case." Id. at 301. It is the view of the writer that in a simpler day when any grouping above, say six lawyers, was generally considered a large lawfirm, no such showing was necessary and the mere fact that Lawyer I had left Firm I and joined Firm II constituted an automatic disqualification of the latter. In view of the fact that lawfirms continue to grow in size and even operate multiple offices in distant cities, the time is approaching when some limitation must be placed on the automatic disqualification feature of the rule, but the nature of such limits are beyond the proper scope of this opinion.
        As compared with the rule against dual representation, the rule against representation unfair to a former client is far less severe in its application but far broader in its sweep. All that it required is that the complainant must be a former client of Lawyer I, the lawyer complained about, or his firm. Primarily, the gist of this latter rule is the possible breach of the confidences of the former client. There need not even have been actual litigation. It is not necessary that Client I consulted Firm I about litigation at all or that litigation ever ensue. Wherever the situation is such that breach of confidence or similar unfairness is implicated, Lawyer I is disqualified to accept the retainer of Client II. The extent to which Firm II may be disqualified by the mere fact that Lawyer I has joined them is a question that requires close analysis. There are no absolutes.
        The case of NCNB Texas National Bank v. Coker, 765 S.W.2d 398 (Tex. 1989) did not involve the rule against dual representation. In NCNB, Client I, which was the defendant, complained that Firm I, now representing the plaintiff's attorneys had represented it, the defendant when it was a plaintiff, "in a prior suit" against another party. Thus, it even appears that the allegedly disqualifying litigation was concluded. Therefore, only the second rule, the rule against unfairness toward a former client could have been involved. In this instance, the Supreme Court held that trial courts "must adhere [hold the complainant, Client I] to an exacting standard when considering such motions." Id. at 399. The burden is on the former client to "establish a preponderance of the facts indicating substantial relation between the two representations." Finding that Client I, the former client had failed to make the necessary showing, the Supreme Court held that the trial court had committed an abuse of discretion of the degree required in order to obtain a writ of mandamus, and held that the order of disqualification must be set aside.
        Both Petroleum, 751 S.W.2d at 295 and NCNB, 765 at 398 are eminently correct on their own facts. Any seeming conflict, or any inability to reconcile them is attributable to the fact that neither takes notice that two different rules are involved. Unfortunately, there is much additional confusion in the cases on attorney disqualification, the greater part being attributable to the failure to distinguish which rule is to be applied. Unfortunately, today's majority has done little to resolve the confusion.
        In the case now before us, the relator has strenuously argued Petroleum. However, Petroleum is based on the rule against dual representation. Attorney I, Mr. Jacobson, was never affiliated with Firm I (Cowles and Thompson, who represent Client I, the complainant, in the action that underlies this mandamus). His affiliation was with Thompson and Knight which has never participated in the current action below. Thompson and Knight's only involvement is that they were consulted by Client I, not with respect to the specific underlying lawsuit, but with respect to the general area of liability from which the lawsuit emanates. Petroleum, 751 S.W.2d at 398 is inapplicable because there has been no dual representation, by imputation or otherwise.
        Relator's case only implicates the second rule, the rule against representation that is unfair to a former client. It is true, in an abstract sense that Attorney I did, while he was an affiliate of Thompson and Knight, have Client I as his client. However, reference to Martindale-Hubbell discloses that Thompson and Knight is a large lawfirm with well over one hundred lawyers as its affiliates, VI Martindale-Hubbell Law Directory, P. 2599B-2605B (1989 ed.).
        Attorney I testified before the respondent judge without controversion that he never knew that Client I was, in fact a client of Thompson and Knight. The only countervailing contention is that he could reasonably have seen some of the papers relating to Client I laying around or he could reasonably have been present while the affairs of Client I were being discussed between associates or employees of the firm. Clearly, under NCNB, 765 S.W.2d at 398, where only the rule against unfairness is involved, there are no presumed disqualifications; ergo, no disqualification may be imputed. An "exacting standard" is called for. Id. at 399. With no presumptions to be invoked in its favor, with no evidence other than evidence of propinquity, it is clear that relator did not meet the requirements for the disqualification of opposing counsel that were laid down by NCNB.
        From what has been said, we must find that Attorney I, himself was not disqualified from participating in the underlying lawsuit. It follows that Firm II could not have become disqualified by reason of his affiliation with them. Futhermore, inasmuch as Client I failed to carry its burden and failed to meet the "exacting standard" laid down by NCNB, the trial court had only one option; it was obligated to overrule the motion for disqualification.
        I therefore concur in today's judgment. I do not agree with the inferential holding of the majority to the effect that the abuse of discretion standard should control the outcome of this mandamus. The trial court made the only ruling that was permissible on the evidence before him when he overruled relator's motion to disqualify the lawyers representing relator's adversaries.
                                                  
                                                  CHARLES BEN HOWELL
                                                  JUSTICE
 
 
PUBLISH
TEX. R. APP. P. 90
89-00056.CF
 
FN:1      [From Christ's Sermon on the Mount] No man can serve two masters; For either he will hate the one, and love the other; or else he will hold to the one, and despise the other. Ye cannot serve God and mammon.
 
MATTHEW 6:24 (King James ed.)
File Date[01-02-89]
File Name[890056]