In Re: Mike McCormick--Appeal from County Court at Law of Smith County

NO. 12-02-00231-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

IN RE: MIKE MCCORMICK,

 
ORIGINAL PROCEEDING

RELATOR

 

Mike McCormick ("McCormick") brings this petition for writ of mandamus complaining of an order denying his motion to disqualify counsel for Jose Feliciano ("Feliciano"), plaintiff in the underlying breach of contract action. We deny the writ.

 
Background

Feliciano is the owner of Feliciano Insurance in Tyler, Texas. In 1989 or 1990, Feliciano hired McCormick as an independent contractor to assist Feliciano in his insurance business. Feliciano subsequently discovered that McCormick was selling insurance policies to clients referred to him by Feliciano, but was placing the policies with companies that Feliciano did not represent. As a result, Feliciano would not receive a percentage of any renewal premiums for the policies. Upon learning of McCormick's actions, Feliciano terminated his business relationship with McCormick. However, Feliciano agreed to rehire McCormick if they could reach an agreement that would preserve Feliciano's right to share in the renewal premiums from the policies McCormick sold.

Feliciano and McCormick negotiated the terms of their agreement without the assistance of counsel. Feliciano then called J. Bennett White ("White"), who had been his attorney for a number of years, to request that White draft a written contract incorporating the agreed terms. Feliciano and McCormick went to White's office, where Feliciano, in McCormick's presence, related the terms of their agreement. (1) White drafted a "Confidentiality and Non-Competition Agreement" ("the agreement"), which was "approved and agreed" by the parties on May 10, 1991.

In 1997, McCormick opened his own business and terminated his affiliation with Feliciano. Two years later, Feliciano, represented by White, sued McCormick for breach of the agreement. On August 15, 2002, McCormick filed a motion to disqualify White and the law firm of Wilson, Sheehy, Knowles, Robertson & Cornelius, P.C. (the "Wilson firm") from representing Feliciano. In his motion, McCormick alleges that White represented both Feliciano and McCormick in the preparation of the agreement and therefore cannot represent Feliciano against McCormick in the underlying lawsuit without McCormick's consent. McCormick also alleges that the agreement is ambiguous, that White will be called to testify at trial about the intent of the parties, and that White's testimony will be adverse to McCormick. McCormick argues that both situations violate specific provisions of the Texas Disciplinary Rules of Professional Conduct and require disqualification of White and the Wilson firm.

On August 19, 2002, the trial court conducted a hearing on McCormick's motion. At the conclusion of the hearing, the trial court denied the motion. McCormick filed his petition for writ of mandamus on August 20, 2002 asking this court to set aside the trial court's order denying his motion to disqualify. (2) The trial court signed its written order on August 23, 2002.

 
Availability of Mandamus

The granting or denial of a motion to disqualify is reviewable by mandamus. See Nat'l Med. Enters., Inc. v. Godbey, 924 S.W.2d 123, 133 (Tex. 1996) (orig. proceeding). Mandamus will issue only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no adequate remedy by appeal. In re Daisy Mfg. Co., 17 S.W.3d 654, 658 (Tex. 2000) (orig. proceeding). A trial court clearly abuses its discretion when it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding).

With respect to the resolution of factual issues or matters committed to the trial court's discretion, we may not substitute our judgment for that of the trial court unless the relator establishes that the trial court could reasonably have reached only one decision and that the trial court's decision is arbitrary and unreasonable. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding). This burden is a heavy one. Canadian Helicopters, Ltd. v. Wittig, 876 S.W.2d 304, 305 (Tex. 1994) (orig. proceeding).

 
Abuse of Discretion

Rule 1.06 of the Texas Disciplinary Rules of Professional Conduct provides that "a lawyer who has represented multiple parties in a matter shall not thereafter represent any of such parties in a dispute among the parties arising out of the matter, unless prior consent is obtained from all such parties to the dispute." Tex. Disciplinary R. Prof'l Conduct 1.06(d), reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G app. A (Vernon 1998) (Tex. State Bar R. art. X, 9). Rule 3.08(b) requires an attorney to decline representation "if the lawyer believes that the lawyer will be compelled to furnish testimony that will be substantially adverse to the lawyer's client, unless the client consents after full disclosure." Tex. Disciplinary R. Prof'l Conduct 3.08(b). McCormick reasons that because he is White's former client, both rules require that White and the Wilson firm be disqualified. However, to establish that rules 1.06 and 3.08(b) are applicable here, McCormick must first show that he and White had an attorney-client relationship.

The attorney-client relationship is a contractual relationship whereby an attorney agrees to render professional services for a client. Mellon Serv. Co. v. Touche Ross & Co., 17 S.W.3d 432, 437 (Tex. App.- Houston [1st Dist.] 2000, no pet). The relationship may be expressly created by contract, or it may be implied from the actions of the parties. Sutton v. Estate of McCormick, 47 S.W.3d 179, 182 (Tex. App.- Corpus Christi 2001, no pet.); Mellon, 17 S.W.3d at 437. A question of fact exists when the evidence does not conclusively establish the existence of an attorney-client relationship. See Sutton, 47 S.W.3d at 182; Kanow v. Brownshadel, 691 S.W.2d 804, 805-06 (Tex. App.- Houston [1st Dist.] 1985, no writ).

McCormick argues that the record in the instant case conclusively establishes that White represented both Feliciano and McCormick. Based upon our examination of the record, we conclude that the record contains conflicting evidence on the issue. Consequently, McCormick has not established that the trial court could reasonably have reached only one decision on whether he and White had an attorney-client relationship.

McCormick also asserts that rule 3.08 requires White's disqualification because his testimony "may be adverse to his current client's position taken in this litigation...." Assuming, without deciding, that McCormick has standing to raise the question, the record does not reflect the substance of White's potential testimony or that such testimony, if offered, will be adverse to Feliciano. Therefore, rule 3.08 does not apply to the record before us.

 
Conclusion

Based upon the record presented, we conclude that McCormick has not shown that the trial court clearly abused its discretion in denying the motion to disqualify White and the Wilson firm. Because the trial court did not abuse its discretion, we need not address whether McCormick has an adequate remedy by appeal. Tex. R. App. P. 47.1. Accordingly, McCormick's petition for writ of mandamus is denied.

 

SAM GRIFFITH

Justice

 

Opinion delivered September 18, 2002.

Panel consisted of Gohmert, Jr., C.J., Worthen, J., and Griffith, J.

 
(DO NOT PUBLISH)

1. The extent of McCormick's participation at the meeting with White is unclear from the record.

2. McCormick raised two other issues in his petition for writ of mandamus. Those issues are now moot and have been withdrawn.