in Re Carla Lorene Cox ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00132-CV
IN RE CARLA LORENE COX RELATOR
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ORIGINAL PROCEEDING
TRIAL COURT NO. 14-00439
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CONCURRING AND DISSENTING OPINION
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I. INTRODUCTION
Relator Carla Lorene Cox has filed a petition for writ of mandamus
asserting that the trial court abused its discretion by denying her motion to
disqualify the entire Cooke County District Attorney’s Office and special
prosecutor Cary Piel from prosecuting her for murder. I concur with the
majority’s denial of Relator’s petition for writ of mandamus seeking the
disqualification of the entire Cooke County District Attorney’s Office. But I
respectfully dissent from the majority’s denial of Relator’s petition for writ of
mandamus seeking the disqualification of special prosecutor Cary Piel.
II. FACTUAL BACKGROUND
The mandamus record conclusively establishes the following facts:
 In 2011, while employed with the Denton County Criminal District
Attorney’s Office, prosecutor Cary Piel and a law student named Eric
Erlandson, who was interning at the Denton County Criminal District
Attorney’s Office, began investigating a “cold case” murder that had
occurred in 2009 in Cooke County, Texas.
 Cooke County District Attorney Janice Warder authorized Piel to look into
the case and to discuss it with investigators.
 Piel and Erlandson worked on the murder case together from 2011 through
June 2012 and “went into enormous detail together” about the Carla Cox
case. Erlandson testified that he had access to the State’s files related to
the Carla Cox case during this time.
 After becoming a person of interest in the cold case, Carla Cox hired
attorney Lee Tatum to represent her in connection with this case. Cox was
indicted for murder on December 12, 2012, and she discharged Tatum on
January 31, 2013, and hired her present counsel.
 Piel left the Denton County District Attorney’s Office in June 2012 and went
into private practice as a criminal defense attorney. Piel continued his
prosecution of the Carla Cox case. Through 2014, portions of the
discovery file in the case remained at Piel’s office.
 Erlandson graduated from law school and began working for Lee Tatum in
August 2013. Erlandson is currently a partner with Tatum. While working
for Tatum––who had represented Relator in this exact murder case––
Erlandson discussed Relator’s murder case “in general” with Piel and until
February or March 2014, Erlandson expected to try the Carla Cox murder
case with Piel. In early 2014, Erlandson told a partner with Relator’s
present counsel that he was working on the case and was going to
prosecute the case with Piel.
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 On March 26, 2014, Warder filed a formal appointment of Piel as a special
prosecutor in the case.
 Relator subsequently filed the motion to disqualify Piel and the entire
Cooke County District Attorney’s Office.
III. THE LAW CONCERNING DISQUALIFICATION
A. The District Attorney and Her Prosecutors
The standard for disqualification of an elected district attorney and her
entire office is different from the standard for disqualification of a special
prosecutor. A trial court may not disqualify a district attorney on the basis of a
conflict of interest unless that conflict rises to the level of a due-process violation.
Landers v. State, 256 S.W.3d 295, 304 (Tex. Crim. App. 2008) (citing State ex
rel. Hill v. Pirtle, 887 S.W.2d 921, 927 (Tex. Crim. App. 1994)). A due-process
violation occurs only when the defendant can establish “actual prejudice,” not just
the threat of possible prejudice to her rights by virtue of the district attorney’s
prior representation. Id. Actual prejudice would occur, for example, if the
prosecuting attorney had previously represented the defendant in the same
matter or in a substantially-related matter and in that representation had obtained
confidential information and used it to the defendant’s disadvantage. Id. at 304–
05. A trial court’s authority to disqualify a prosecutor comes from the court’s duty
to protect the accused’s constitutional due-process rights, see, e.g., Ex parte
Morgan, 616 S.W.2d 625, 626 (Tex. Crim. App. 1981) (orig. proceeding), and the
statute barring prosecutors from representing the State in the same matter for
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which he or she has been previously employed adversely, see Tex. Code Crim.
Proc. Ann. art. 2.01 (West 2005).
The heightened burden for disqualifying a district attorney is policy driven:
unlike a private attorney, a district attorney is an elected official whose office is
constitutionally mandated and protected. Landers, 256 S.W.3d at 303; State ex
rel. Eidson v. Edwards, 793 S.W.2d 1, 6 (Tex. Crim. App. 1990) (orig.
proceeding) (plurality op. on reh’g). District attorneys and their prosecutors are
subject to the rules of disciplinary conduct, “but they must police themselves at
the trial court level because of their status as independent members of the
judicial branch of government.” Eidson, 793 S.W.2d at 6. And because the
district attorney is an elected official, “[s]hould h[er] conduct [and the conduct of
the prosecutors in her office] create too much appearance of impropriety and
public suspicion, [s]he will ultimately answer to the voters.” Id.
B. Special Prosecutors1
A “special prosecutor,” though enlisted by a district attorney to help in a
particular case, is not part of the district attorney’s staff. Coleman v. State, 246
S.W.3d 76, 82 (Tex. Crim. App. 2008). Unlike the district attorney and the
attorneys employed in the district attorney’s office, a special prosecutor is not
required to sign the oath of office. Id. Commissioning a special prosecutor does
1
As pointed out by Relator and the State in this proceeding, a special
prosecutor is different from an attorney pro tem. See Tex. Code Crim. Proc. Ann.
art. 2.08 (West Supp. 2014). This opinion is limited in scope to special
prosecutors.
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not require court approval. Id. Additionally, unlike a prosecutor, who is statutorily
prohibited from appearing adversely to the State, a private attorney asked to
serve as a special prosecutor is under no such prohibition. See Tex. Code Crim.
Proc. Ann. art. 2.08(a). Unlike a prosecutor in the district attorney’s office whose
position is constitutionally mandated and protected, the position of a special
prosecutor enjoys no such constitutional underpinnings. Cf. Landers, 256
S.W.3d at 303. If one private attorney appointed as a special prosecutor is
disqualified in a particular case, a district attorney may appoint a different private
attorney to serve as a special prosecutor. In short, the policy reasons articulated
by the court of criminal appeals as supporting disqualification of an entire district
attorney’s office on the basis of a conflict of interest only if that conflict rises to
the level of a due-process violation simply do not apply to an attorney in private
practice appointed as a special prosecutor in a single case. Accord Landers, 256
S.W.3d at 304. A private attorney appointed as a special prosecutor nonetheless
remains a private attorney and is disqualifiable on conflict-of-interest grounds that
need not rise to the level of a due-process violation.
The Texas Disciplinary Rules of Professional Conduct serve as guidelines
for the courts when considering motions to disqualify. See In re Epic Holdings,
Inc., 985 S.W.2d 41, 48 (Tex. 1998) (orig. proceeding). Rule 1.09 sets forth the
general rules concerning conflicts of interest between a private attorney and a
former client. Tex. Disciplinary Rules Prof’l Conduct R. 1.09, reprinted in Tex.
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Gov’t Code Ann., tit. 2, subtit. G, app. A (West 2013) (Tex. State Bar R. art. X,
§ 9)). It provides, in pertinent part:
(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:
....
(3) if it is the same or a substantially related matter.
(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 Prof’l Conduct R. 1.09(a)(3), (b).
The law is well-settled that a private attorney who has previously
represented a client will be automatically disqualified from representing another
person adverse to the former client in the same matter. In re Guar. Ins. Servs.,
Inc., 343 S.W.3d 130, 133–34 (Tex. 2011) (orig. proceeding); In re Columbia
Valley Healthcare Sys., LP, 320 S.W.3d 819, 824 (Tex. 2010) (orig. proceeding)
(citing Phoenix Founders, Inc. v. Marshall, 887 S.W.2d 831, 833 (Tex. 1994)
(orig. proceeding)); Epic Holdings, Inc., 985 S.W.2d at 48; see also Tex.
Disciplinary Rules Prof’l Conduct R. 1.09(a). This is because when an attorney
works on a matter, there is an irrebuttable presumption that the attorney obtains
confidential information. Guar. Ins. Servs., Inc., 343 S.W.3d at 134; Columbia
Valley Healthcare Sys., LP, 320 S.W.3d at 824 (citing Phoenix Founders, Inc.,
887 S.W.2d at 833); Epic Holdings, Inc., 985 S.W.2d at 48. The attorney’s
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knowledge of client confidences is imputed by law to every other attorney in the
firm; an irrebuttable presumption exists that an attorney in a law firm has access
to the confidences of the clients and former clients of other attorneys in the firm.
Nat’l Med. Enters., Inc. v. Godbey, 924 S.W.2d 123, 131 (Tex. 1996) (orig.
proceeding). This irrebuttable presumption also applies when an attorney has
worked on a matter and that attorney subsequently moves to a new firm that is
representing an opposing party in the ongoing matter; it is presumed that the
attorney will share the previously-acquired confidences, requiring imputed
disqualification of the new firm. Columbia Valley Healthcare Sys., LP, 320
S.W.3d at 824 (citing Phoenix Founders, Inc., 887 S.W.2d at 834; Tex.
Disciplinary Rules Prof’l Conduct R. 1.09(b)).
IV. STANDARD OF REVIEW
A writ of mandamus will issue only to correct a clear abuse of discretion for
which the relator lacks an adequate remedy at law. See, e.g., In re Frank Motor
Co., 361 S.W.3d 628, 630 (Tex.) (orig. proceeding), cert. denied, 133 S. Ct. 167
(2012); In re Olshan Found. Repair Co., 328 S.W.3d 883, 887 (Tex. 2010) (orig.
proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex.
2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992)
(orig. proceeding). A trial court abuses its discretion if it reaches a decision so
arbitrary and unreasonable that it amounts to a clear and prejudicial error of law
or if it clearly fails to correctly analyze or apply the law. Olshan Found. Repair
Co., 328 S.W.3d at 888; Walker, 827 S.W.2d at 840. When a trial court
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improperly denies a motion to disqualify opposing counsel, there is not adequate
relief by appeal. In re Basco, 221 S.W.3d 637, 639 (Tex. 2007) (orig.
proceeding).
V. APPLICATION OF THE LAW TO THE FACTS
Tatum represented Relator in this exact matter; an irrebuttable
presumption exists that Tatum obtained confidential information from Relator
during this representation. See, e.g., Guar. Ins. Servs., Inc., 343 S.W.3d at 134.
It is undisputed that Tatum, who represented Relator on this murder charge,
could not appear adversely to Relator on this matter by prosecuting her on the
murder charge. See, e.g., Epic Holdings, Inc., 985 S.W.2d at 48; see also Tex.
Disciplinary Rules Prof’l Conduct R. 1.09(a)(3).
The proscription against Tatum’s prosecution of Relator extends to
Erlandson because, by virtue of Erlandson’s position as an associate and now a
partner with Tatum, he presumptively became privy to Relator’s confidences
known by Tatum. See Nat’l Med. Enters., Inc., 924 S.W.2d at 131 (recognizing
that “attorney’s knowledge [of confidences] is imputed by law to every other
attorney in the firm,” despite lack of evidence of actual disclosure of
confidences); see also Epic Holdings, Inc., 985 S.W.2d at 48 (“Members of a law
firm cannot disavow access to confidential information of any one attorney’s
client.”); Tex. Disciplinary Rules Prof’l Conduct R. 1.09(b). Because Tatum
would be disqualified from prosecuting Relator, all attorneys with his firm are
disqualified. See Texaco, Inc. v. Garcia, 891 S.W.2d 255, 257 (Tex. 1995)
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(explaining that because Mr. Secrest was disqualified, his entire firm was
disqualified).
The proscription likewise extends to Piel because, for purposes of rule 1.9
of the disciplinary rules, he became “associated” with Erlandson as co-counsel in
the prosecution of Relator’s murder case while Erlandson was employed with
Tatum. See In re CMH Homes, Inc., No. 04-13-00050-CV, 2013 WL 2446724, at
*5 (Tex. App.—San Antonio June 5, 2013, orig. proceeding) (mem. op.) (granting
mandamus requiring trial court to disqualify co-counsel based on violation of rule
1.09(b) because co-counsel “associated” on case with disqualified attorney); see
also Tex. Disciplinary Rules Prof’l Conduct R. 1.09(b). When Erlandson became
a member of Tatum’s firm and when Piel “associated” with Tatum’s firm by co-
counseling with Erlandson in this very case, none of them (Tatum, Erlandson, or
Piel) could prosecute Relator for murder if any of them practicing alone would be
prohibited from doing so by subsection (a) of rule 1.09, and Tatum is so
prohibited. See Tex. Disciplinary Rules Prof’l Conduct R. 1.09(a), (b).
A trial court has no discretion in applying the law to the facts, and
consequently, the trial court's failure to analyze or apply the law correctly is an
abuse of discretion. In re Am. Homestar of Lancaster, Inc., 50 S.W.3d 480, 483
(Tex. 2001) (orig. proceeding). I would hold that here Respondent misapplied
well-settled law concerning the disqualification of Piel to the undisputed facts
presented at the disqualification hearing. Because Relator possesses no
adequate remedy at law concerning Respondent’s denial of her motion to
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disqualify Piel, I would conditionally grant Relator’s petition for writ of mandamus
concerning the disqualification of Piel. See, e.g., Basco, 221 S.W.3d at 639.
Because the majority does not, I respectfully dissent.
VI. CONCLUSION
I concur with the majority’s denial of Relator’s petition for writ of mandamus
concerning the disqualification of the entire Cooke County District Attorney’s
Office. For the reasons set forth above, I dissent from the majority’s denial of
Relator’s petition for writ of mandamus concerning the disqualification of Cary
Piel to serve as a special prosecutor in Relator’s murder prosecution.
/s/ Sue Walker
SUE WALKER
JUSTICE
DELIVERED: July 23, 2015
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