in the Interest of Kimberley Trimmer-Davis ( 2015 )

ACCEPTED
01-15-00495-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
6/1/2015 7:47:30 PM
CHRISTOPHER PRINE
CLERK
01-15-00495-CV
NO. ______________________-CV
FILED IN
1st COURT OF APPEALS
IN THE COURT OF APPEALS HOUSTON, TEXAS
FOR THE FIRST DISTRICT OF TEXAS
6/1/2015 7:47:30 PM
HOUSTON, TEXAS CHRISTOPHER A. PRINE
Clerk
OFFICER KIMBERLEY TRIMMER-DAVIS,
Relator/Plaintiff
Original Proceeding
from the 295th Judicial District Court of Harris County, Texas
Cause No. 2010-11410
The Honorable Caroline Baker
PETITION FOR WRIT OF MANDAMUS
Respectfully submitted,
Kim K. Ogg
State Bar No. 15230200
kimogg@ogglawfirm.com
R. Scott Poerschke
State Bar No. 24067822
scott@ogglawfirm.com
THE OGG LAW FIRM, PLLC
3215 Mercer, Suite 100
Houston, Texas 77027
(713) 974-1600 – Telephone
(713) 621-2106 – Fax
ORAL ARGUMENT NOT REQUESTED
Petition For Writ of Mandamus Page 1
IDENTITY OF PARTIES AND COUNSEL
[TRAP 52.3(a)]
Relator/Plaintiff:
Officer Kimberley Trimmer-Davis
The Relator/Plaintiff is represented by following attorneys in the trial
court and in this original proceeding:
Kim K. Ogg
State Bar No.
kimogg@ogglawfirm.com
R. Scott Poerschke
State Bar No. 24067822
scott@ogglawfirm.com
THE OGG LAW FIRM, PLLC
3215 Mercer, Suite 100
Houston, Texas 77027
(713) 974-1600 – Telephone
(713) 621-2106 – Fax
Real Party In Interest/Defendant:
The City of Houston
In the trial court, the Real Parties In Interest/Defendant were
represented by the following attorneys:
Henry N. Carnaby
State Bar No. 24064014
henry.carnaby@houstontx.gov
Suzanne R. Chauvin
State Bar No. 04160600
suzanne.chauvin@houstontx.gov
Petition For Writ of Mandamus Page 2
CITY OF HOUSTON
P.O. Box 368
Houston, Texas 77001-368
900 Bagby, 3rd Floor
Houston, Texas 77002
(832) 393-6309 – Telephone
(832) 393-6259 – Fax
It is unknown at that time who will represent the Real Parties In
Interest/Defendant in this original proceeding.
Respondent:
The Honorable Caroline Baker
295th Judicial District Court
201 Caroline, 14th Floor
Houston, Texas 77002
(713) 368-6450 – Telephone
Petition For Writ of Mandamus Page 3
TABLE OF CONTENTS
[TRAP 52.3(b)]
IDENTITY OF PARTIES AND COUNSEL........................................................ 2
INDEX OF AUTHORITIES ................................................................................ 6
STATEMENT OF THE CASE ........................................................................... 11
STATEMENT OF JURISDICTION .................................................................. 12
STATEMENT OF FACTS ................................................................................. 14
ARGUMENT ...................................................................................................... 18
1. STANDARD OF REVIEW: ABUSE OF DISCRETION FOR
LEGAL PRINCIPALS .......................................................................... 18
2. DISQUALIFICATION MUST BE BASED ON CLEAR AND
CONVICING EVIDENCE.................................................................... 18
3. THE CITY IS NOT ENTITED TO A PRESUMPTION THAT OGG
RECEIVED CONFIDENTIAL INFORMATION FROM READY ...... 22
4. OGG’S REPRESENTATION OF TRIMMER-DAVIS IS NOT
“ADVERSE” TO READY (WITHIN THE MEANING OF RULE 1.09(A))
....................................................................................................... 27
5. OGG’S REPRESENTATION OF TRIMMER-DAVIS DOES NOT
QUESTION THE VALIDITY OF PRIOR WORK PERFORMED BY
OGG FOR READY (WITHIN THE MEANING OF RULE 1.09(A)(1)) 30
6. A REASONABLE PROBABILITY DOES NOT EXIST (WITHIN
THE MEANING OF RULE 1.09(A)(2)) THAT OGG’S
REPRESENTATION OF TRIMMER-DAVIS WOULD CAUSE OGG
TO VIOLATE OBLIGATIONS OF CONFIDENTIALITY OWED TO
READY UNDER RULE 1.05 ................................................................ 30
7. OGG’S REPRESENTATION OF TRIMMER-DAVIS IS NOT THE
“SAME” (WITHIN THE MEANING OF RULE 1.09(A)(3)) AS THE
MATTER INVOLVING READY .......................................................... 32
8. OGG’S REPRESENTAITON OF TRIMMER-DAVIS IS NOT
“SUBSTANTIALY RELATED” TO READY’S 90-DAY TEMPORARY
Petition For Writ of Mandamus Page 4
SUSPENSION (WITHIN THE MEANING OF RULE 1.09(A)(3))...... 33
9. THE CITY HAS FAILED TO SHOW “ACTUAL PREJUDICE” . 37
10. EVEN IF OGG IS DISQUALIFIED UNDER THE RULES FROM
REPRESENTING TRIMMER-DAVIS, PUBLIC POLICY DOES NOT
WARRANT DISQUALIFICATION IN THIS CASE ........................... 41
11. THERE IS NO ADEQUATE REMEDY BY APPEAL ................. 44
PRAYER ............................................................................................................. 45
CERTIFICATION .............................................................................................. 46
CERTIFIACTE OF COMPLIANCE .................................................................. 47
Petition For Writ of Mandamus Page 5
INDEX OF AUTHORITIES
[TRAP 52.3(c)]
Cases
Abbott v. Corpus Christi, 109 S.W.3d 113 (Tex. App.—Austin 2003, no pet.) 32
American Mortg. Sec. Funding Corp. v. First Louisiana Federal Sav. Bank,
1988 U.S. Dist. LEXIS 9576 (E.D. La. 1988) ................................................ 24
Arkla Energy Res. v. Jones, 762 S.W.2d 694 (Tex. App.—Texarkana 1988,
orig. proceeding) ....................................................................................... 21, 34
Ayres v. Canales, 790 S.W.2d 554 (Tex. 1990) ................................................. 38
B.F. Goodrich Co. v. Formosa Plastics Corp., 638 F. Supp. 1050 (S.D. Tex.
1986) .................................................................................................... 23, 24, 25
Banc One Capital Partners Corp. v. Kniepper, 67 F.3d 1187 (5th Cir. 1995) 24
Braun v. Valley Ear, Nose, and Throat Specialists, 611 S.W.2d 470
(Tex.Civ.App.-Corpus Christi 1980, no writ.) ............................................... 26
Burt Hill, Inc. v. Hassan, No. Civ. A. 09-1285, 2010 WL 419433 (W.D. Pa.
2010) ................................................................................................................ 42
Capital City Church of Christ v. Novak, No. 03-04-00750-CV, 2007 WL
1501095 (Tex. App.—Austin 2007, no pet).................................................... 21
Cascades Branding Innovation, LLC v. Walgreen Co., 2012 WL 1570774
(N.D. Ill. 2012) ................................................................................................ 23
Cimarron Aric., Ltd. v. Guitar Holding Co., L.P., 209 S.W3d 197 (Tex. App.—
El Paso 2006, no pet) ................................................................................ 20, 38
Conoco v. Baskin, 803 S.W.2d 416 (Tex. App.—El Paso 1991, no writ) .......... 35
F.D.I.C. v. Howse, 802 F. Supp. 1554 (S.D. Tex. 1992) ..................................... 25
First Mun. Leasing Corp. v. Blankenship, Potts, Aikman, Hagin & Stewart,
648 S.W.2d 410 (Tex. App.—Dallas 1983, writ ref'd n.r.e.).......................... 25
Ghidoni v. Stone Oak, Inc., 966 S.W.2d 573 (Tex. App.—San Antonio 1998,
pet. denied) ..................................................................................................... 39
Petition For Writ of Mandamus Page 6
Howe Inv., Ltd. v. Perez Y Cia. de Puerto Rico, Inc., 96 F. Supp. 2d 106 (D.
Puerto Rico 2000) ........................................................................................... 23
Huie v. DeShazo, 922 S.W.2d 920 (Tex.1996) .................................................. 18
In re A.L.S., 2006 WL 75369 (Tex. App.—Beaumont 2006, orig. proceeding) 20
In re Bennett, 2006 WL 2403319 (Tex. App.—Houston [14th Dist.] 2006, orig.
proceeding) (mem. op.) ................................................................................... 20
In re Butler, 987 S.W.2d 221 (Tex. App.—Houston [14th Dist.] 1999, orig.
proceeding) ...................................................................................................... 44
In re Cap Rock Electric Co-op., Inc., 35 S.W.2d 222 (Tex. App.—Texarkana
2000, orig. proceeding) ............................................................................. 35, 40
In re Chonody, 49 S.W.3d 376 (Tex. App.—Fort Worth 2000, no pet.) ........... 44
In re Dalco, 186 S.W.3d 660 (Tex. App.—Beaumont 2006, orig. proceeding) . 38
In re de Brittingham, 319 S.W3d 95 (Tex. App.— San Antonio 2010, orig.
proceeding) ...................................................................................................... 20
In re Disciplinary Proceedings Against Kostich, 2010 WI 136, 330 Wis. 2d
378, 793 N.W.2d 494 (2010) ........................................................................... 23
In re Drake, 195 S.W3d 232 (Tex. App.—San Antonio 2006, orig. proceeding)
................................................................................................................... 20, 21
In re Gerry, 173 S.W.3d 901 (Tex. App. – Tyler 2005) ..................................... 26
In re Hilliard, No. 13-05-223-CV, 2006 WL 1113512 (Tex. App.—Corpus
Christi Apr. 27, 2006, pet. denied) ................................................................ 39
In re Interest of A.M., 974 S.W.2d 857 (Tex. App.—San Antonio 1998, no pet.)
......................................................................................................................... 37
In re Martel, 2007 WL 43616 (Tex. App.—Tyler, 2007, orig. proceeding) 20, 38
In re McDaniel, No. 10-04-00166-CV, 2006 WL 408397 (Tex. App.—Waco
2006, orig. proceeding) ................................................................................... 38
In re Nitla S.A. de C.V., 92 S.W.3d 419 (Tex. 2002) ........................................ 38
Petition For Writ of Mandamus Page 7
In re Robinson, 90 S.W.3d 921 (Tex. App.—San Antonio 2002, orig.
proceeding) ...................................................................................................... 20
In re Sandoval 2009 WL 4891949 (Tex. App.—San Antonio 2009, orig.
proceeding) ................................................................................................ 20, 38
In re Southwestern Bell Yellow Pages, Inc., 141 S.W.3d 229 (Tex. App.—San
Antonio 2004, orig. proceeding) ..................................................................... 39
In re TDFPS, 210 S.W.3d 609 (Tex. 2006) ........................................................ 18
In re Tyler Asphalt & Gravel Co., 107 S.W.3d 832 (Tex.App.—Houston [14th
Dist.] 2003, orig. proceeding) ......................................................................... 18
In re Users System Services, Inc., 22 S.W.3d 331 (Tex. 1999) ........................ 42
In re Vossdale Townhouse Ass’n, Inc., 302 S.W.3d 890 (Tex. App.—Houston
[14th Dist.] 2009, orig. proceeding) ............................................................... 37
In re Works, 118 S.W.3d 906 (Tex. App.—Texarkana 2003, orig. proceeding)
......................................................................................................................... 40
In re Yarn Processing v. Patent Validity Litig., 530 F.2d 83 (5th. Cir. 1976) 19
Insurance of America Agency Inc. v. Life Investors Insurance Company, 1997
WL 466529, No. 05-95-00923-CV (Tex.App.—Dallas 1997) ......................... 43
J.K. & Susie L. Wadley Research Inst. & Blood Bank v. Morris, 776 S.W.2d
271 (Tex. App.—Dallas 1989, orig. proceeding) ................................ 21, 22, 34
Keith v. Solls, 256 S.W.3d 912 (Tex. App.— Dallas 2008, orig. proceeding) .. 37
Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656 (Tex.
1995) ................................................................................................................ 41
Lopez v. Sandoval, 2006 WL 417326 (Tex. App.—Corpus Christi 2006, no
pet.)(mem. op.) .......................................................................................... 20, 35
Metro. Life Ins. v. Syntek Fin. Corp., 881 S.W.2d 319 (Tex. 1994) ..... 20, 22, 34
Milliken v. Grigson, 986 F. Supp. 426 (S.D. Tex. 1997) .................................... 37
N. Dak. St. B. Ass'n Ethics Comm., Op. 11-02, 2011 WL 1134640 (2011) ...... 23
Petition For Writ of Mandamus Page 8
N.Y.C. B. Ass’n Comm. on Prof'l and Jud'l Ethics, Formal Op. 2006-2 (April
2006) ................................................................................................................ 24
Nat’l Med. Enters, v. Godbey, 924 S.W.2d 123 (Tex.1996) (orig. proceeding) 28,
42
NCNB Tex. Nat'l Bank v. Coker, 765 S.W.2d 398 (Tex. 1989) (orig.
proceeding) .................................................................................... 20, 34, 36, 37
Nolan v. Foreman, 665 F.2d 738 (5th Cir. 1982) .............................................. 26
O Builders & Associates, Inc. v. Yuna Corp. of NJ, 206 N.J. 109, 19 A.3d 966
(2011)............................................................................................................... 23
Parker v. Carnahan, 772 S.W.2d 151 (Tex. App.—Texarkana 1989, writ
denied) ............................................................................................................. 25
Roberts v. Healey, 991 S.W.2d 873 (Tex.App. —Houston [14 Dist.] 1999) ..... 25
Schwartz v. Jefferson, 930 S.W.2d 957 (Tex. App.—Houston [14th Dist.] 1996,
orig. proceeding) ............................................................................................. 44
Selby v. Revlon Consumer Products Corp., 6 F. Supp. 2d 577 (N.D. Tex. 1997)
......................................................................................................................... 28
Simon v. Floyd, 1997 WL 30922 (Tex. App.—Beaumont 1997, no writ) ......... 35
Smith v. Abbott, 311 S.W3d 62 (Tex. App.—Austin 2010, pet. denied) .... 20, 38
Spears v. Fourth Court of Appeals, 797 S.W.2d 654 (Tex. 1990) .............. 37, 38
United States v. Aleman, No. CRIM. EP.-04-CR-1590 K, 2004 WL 1834602
(W.D. Tex. Aug. 12, 2004) .............................................................................. 20
United States v. Marks, 949 S.W.2d 320 (Tex. 1997) ...................................... 41
Ussery v. Gray, 804 S.W.2d 232 (Tex. App.—Forth Worth 1991, no pet.) ...... 39
Walker v. Packer, 827 S.W.2d 833 (Tex. 1992). ............................................... 18
Statutes
Local Gov't Code § 143.089(f) ............................................................................ 32
Local Gov’t Code §§ 143.089, 143.1214 ............................................................. 32
Petition For Writ of Mandamus Page 9
Other Authorities
2011 Meet and Confer Agreement, available at:
http://www.hpou.org/docs/meetandconfer.pdf (effective May 29, 2015) ...... 32
Open Records Decision No. 419 (2012) ............................................................. 32
Open Records Decision No. 562 at 6 (1990) ...................................................... 32
PEC Op. 584 (2008) ................................................................................ 28, 30, 31
PEC Op. 645 (2014) ............................................................................................ 27
Rules
TEX. DISCIPLINARY R. PROF. CONDUCT 1.05 ................................................ 23, 31
TEX. DISCIPLINARY R. PROF. CONDUCT 1.05 cmt. 1 ........................................... 26
TEX. DISCIPLINARY R. PROF. CONDUCT 1.05(b)(3) ............................................. 31
TEX. DISCIPLINARY R. PROF. CONDUCT 1.06 ...................................................... 27
TEX. DISCIPLINARY R. PROF. CONDUCT 1.06 cmt. 10......................................... 40
TEX. DISCIPLINARY R. PROF. CONDUCT 1.06 cmt. 17 ......................................... 19
TEX. DISCIPLINARY R. PROF. CONDUCT 1.09 .......................................... 20, 27, 43
TEX. DISCIPLINARY R. PROF. CONDUCT 1.09(a)............................................ 27, 29
TEX. DISCIPLINARY R. PROF. CONDUCT 1.09(a)(1) ............................................. 30
TEX. DISCIPLINARY R. PROF. CONDUCT 1.09(a)(3) ................................. 22, 33, 37
Treatises
48 Robert P. Schuwerk et. al., Texas Practice: Texas Lawyer & Judicial
Ethics § 6:9 (2015 ed.) ........................................................................ 23, 31, 42
Charles F. Herring, Jr., Texas Legal Malpractice and Lawyer Discipline §
4.33 (10th Ed. 2011) ................................................................................. 19, 38
Petition For Writ of Mandamus Page 10
STATEMENT OF THE CASE
[TRAP 52.3(d)]
This mandamus proceeding involves a motion to disqualify Kim K. Ogg,
R. Scott Poerschke, and The Ogg Law Firm, PLLC (hereinafter collectively
referred to as “Ogg”) from representing Officer Kimberley Trimmer-Davis
(hereafter “Trimmer-Davis”). Defendant, The City of Houston (hereafter “The
City”), moved to disqualify Ogg on the basis of an alleged conflict of interest
involving an alleged former client of Ogg – Captain Dwayne Ready (hereafter
“Ready.”). (App.1.) Judge Caroline Baker granted Defendant’s Motion to
Disqualify. (App.3.) Trimmer-Davis seeks mandamus relief compelling Judge
Baker to withdraw her order disqualifying Ogg and order her to deny the
Motion to Disqualify.
The Respondent is Judge Caroline Baker of the 295th Judicial District
Court of Harris County, Texas. On January 14, 2015, Judge Caroline Baker
signed an order granting Defendant’s Motion to Disqualify, which disqualified
Kim K. Ogg and The Ogg Law Firm, PLLC from representing Trimmer-Davis.
(App.3.) The order does not indicate any grounds for the disqualification nor
does the order contain any findings.
The underlying action from which this original proceeding, Cause No.
2010-11410, is taken involves discrimination and retaliation committed by the
City against Trimmer-Davis.
Petition For Writ of Mandamus Page 11
STATEMENT OF JURISDICTION
[TRAP 52.3(e)]
The Court has jurisdiction to issue a writ of mandamus in this case under
article V, section 6 of the Texas Constitution, section 22.221(b) of the Texas
Government Code, and rule 52 of the Texas Rules of Appellate Procedure.
Petition For Writ of Mandamus Page 12
ISSUES PRESENTED
[TRAP 52.3(f)]
Whether Judge Baker abused her discretion in granting the City’s
Motion to Disqualify Ogg.
Whether the City proved by clear and convincing evidence facts sufficient
to disqualify Ogg.
Whether the City is entitled to a presumption that confidential
information was shared between Ogg and Ready.
Whether the City has shown that the current matter involving Trimmer-
Davis is adverse to Ready.
Whether there is a conflict of interest disqualifying Ogg from
representing Trimmer-Davis under TEX. DISCIPLINARY R. PROF. CONDUCT Rule
1.09(a)(1).
Whether there is a conflict of interest disqualifying Ogg from
representing Trimmer-Davis under TEX. DISCIPLINARY R. PROF. CONDUCT Rule
1.09(a)(2).
Whether there is a conflict of interest disqualifying Ogg from
representing Trimmer-Davis under TEX. DISCIPLINARY R. PROF. CONDUCT Rule
1.09(a)(3).
Whether the City has shown actual prejudice.
Whether Ogg should still be disqualified even if the City has meet their
burden to show a conflict of interest under TEX. DISCIPLINARY R. PROF.
CONDUCT Rule 1.09.
Petition For Writ of Mandamus Page 13
STATEMENT OF FACTS
[TRAP 52.3(g)]
Only few days before trial in the underlying case from which this appeal
is taken, Cause No. 2010-11410, the City filed on April 11, 2014 an “Emergency
Motion to Disqualify” Ogg from representing Trimmer-Davis, the Plaintiff in
that case. (App.1:001.) 1 In that motion, the City claimed that Ogg had a
conflict of interest between her current client, Trimmer-Davis, the Plaintiff in
Cause No. 2010-11410, and a former client, Ready. Both Ready and Trimmer-
Davis were employed by Houston Police Department and Ready was Trimmer-
Davis’ supervisor when she was assigned to the Human Resources Division in
the Houston Police Department. Ready did not intervene in the underlying
suit, nor did he ever request disqualification of Ogg. (App.1:005.)
Based upon the City’s Motion to Disqualify, on January 14, 2015, Judge
Baker signed an Order disqualifying Ogg and The Ogg Law Firm, PLLC. The
order only stated that “[u]pon consideration, the Court GRANTS Defendant
City of Houston’s Motion to Disqualify Counsel.” (App.3.) The Order did not
contain any findings. Id.
The basis for the City’s motion involved a “preliminary consultation”
between Ogg and Ready on September 4, 2008. (App.1:009.)2 In 2008, Ready
1 Trial was set for April 15, 2014, but later continued for reasons unrelated to the Motion to Disqualify.
2 The City never established the date of Ready’s consultation with Ogg. However, the date of
consultation was likely to be September 4, 2008 as it was Ogg’s standard policy to have prospective
Petition For Writ of Mandamus Page 14
was facing a 90 day suspension or termination from the City of Houston Police
Department for failing to follow established procedure and general orders
requiring him to submit work cards for approval of extra employment with the
Great Midtown Management District. (App.2:018.) The City alleged that the
‘preliminary consultation’ constituted legal representation by Ogg of Ready.
In response to the City’s Motion to Disqualify, Ogg filed an affidavit
stating that she did not have any independent recollection of the events
occurring during the “preliminary consultation.” (App.1:008.)3 Ready, in his
affidavit attached to the City’s Motion to Disqualify, indicated that he paid Ogg
$250 a consultation. (App.1:008; App.2:008.) $250 was Ogg’s standard charge
for a one-hour consultation in 2008. (App.2.:008.) Based on Ogg’s standard
practice and the amount of Ready’s check, Ogg inferred that the consultation
lasted up to one hour and no longer. (App.2:009.) Ready did not seek further
legal advice from Ogg and did not retain Ogg to represent him in his pending
disciplinary matter against the City of Houston Police Department.
(App.1:008; App.2:008-9.)
On September 11, 2008, a few days after the preliminary consultation
clients pay on the day of the consultation. (App:2:009.)
3 In response to the City’s Motion to Disqualify, Ogg did recall a report by Wayne Dolcefine, on Channel
13, regarding Ready and the issues surrounding his 90-day temporary suspension. (App.2:009.) Due
to her knowledge of police practice and civil service laws, Ogg inferred that the purpose of the
consultation involved advice on the arbitration appeal process. (App.2:010.)
Petition For Writ of Mandamus Page 15
with Ogg, Ready accepted a 90-day temporary suspension from Chief Harold
L. Hurtt in lieu of termination. (App.2:017.) As explained by Chief Hurtt, on
the face of the 90-day suspension letter, Ready opted for and was granted a 90-
calendar day suspension in lieu of an indefinite suspension or termination.
(App.2:021.) By agreeing of the 90-day suspension, Ready accepted the
temporary suspension and retained his job with the Houston Police
Department. (App.2:022); (App.2:013.)
Sometime thereafter, Ogg and Trimmer-Davis entered into a formal
attorney-client relationship and Ogg began representing Trimmer-Davis in the
underlying case, Cause No. 2010-11410, pending in the 295th Judicial District
Court of Harris County, Texas with Judge Carolyn Baker presiding.
During discovery in Trimmer-Davis’ case, Cause No. 2010-11410, the
City produced Ready’s September 11, 2008 90-day temporary suspension letter.
(App.2:011.) The suspension letter was (and still is) clearly marked with the
City’s bates stamped numbers. (App.2:017.) Scott Poerschke, an associate
attorney working with Ogg on the case, questioned various City witnesses
about their knowledge of Ready’s 90-day suspension. (App 1:012; App 1:016;
App 1:023.)
Trimmer-Davis subpoenaed Ready for trial. Ready allegedly met with
counsels for the City shortly before the trial date to discuss his testimony.
(App.1:08.) Ready discovered, as alleged by the City, that Trimmer-Davis was
Petition For Writ of Mandamus Page 16
then represented by Ogg and not a former attorney of Trimmer-Davis that
conducted his deposition back in 2011. (App.1:09.)
As of the date of filing of this motion, no trial date has been set by Judge
Baker and the parties have not undertaken any further discovery in this
matter since entry of the January 14, 2015 Order.
Petition For Writ of Mandamus Page 17
ARGUMENT
[TRAP 52.3(h)]
1.   STANDARD OF REVIEW: ABUSE OF DISCRETION FOR
LEGAL PRINCIPALS
The factual issues underlying this case are not in dispute. This case rests
upon legal principles.
In reviewing the trial court’s determination of the legal principles
underlying its ruling, the reviewing court is far less deferential than it is in
reviewing the trial court’s resolution of factual issues. Walker v. Packer, 827
S.W.2d 833, 840 (Tex. 1992). When determining legal principles, the trial court
has no discretion to misinterpret or misapply the law. Id. Thus, a clear failure
to analyze or apply the law correctly constitutes an abuse of discretion. Id.; see
In re TDFPS, 210 S.W.3d 609, 612 (Tex. 2006). A trial court’s erroneous legal
conclusion is an abuse of discretion, even if the law is unsettled. Huie v.
DeShazo, 922 S.W.2d 920, 927-28 (Tex.1996); In re Tyler Asphalt & Gravel Co.,
107 S.W.3d 832, 840 n.10 (Tex.App.—Houston [14th Dist.] 2003, orig.
proceeding).
2.   DISQUALIFICATION MUST BE BASED ON CLEAR AND
CONVICING EVIDENCE
As a general rule, courts do not disqualify an attorney on the grounds of
conflict of interest unless the former client moves for disqualification or where
an unethical “change of sides” is sufficiently manifest as to prompt the court to
Petition For Writ of Mandamus Page 18
disqualify counsel on its own motion. In re Yarn Processing v. Patent Validity
Litig., 530 F.2d 83, 88 (5th. Cir. 1976). When the motion to disqualify is
brought by an opposing party—and not a client—the burden to prove the
conflict of interest is higher for the proponent of the motion. Here, the party
requesting disqualification is not a client who is now a party to the underlying
case. The City is not a former client of Ogg. The City alleges that Ready is a
former client of Ogg, but Ready did not intervene in the underlying case nor
did he request disqualification. The City has brought the Motion to Disqualify
on its own behalf.
When the party raising the motion to disqualify is an opposing party, the
judge should view the objections with “great caution.” Charles F. Herring, Jr.,
Texas Legal Malpractice and Lawyer Discipline § 4.33 (10th Ed. 2011); TEX.
DISCIPLINARY R. PROF. CONDUCT 1.06 cmt. 17 (“Such an objection should be
viewed with great caution, however, for it can be misused as a technique of
harassment.”). The court should also consider any other evidence which
indicates the motion is being filed not due to a concern that confidences
“related to an attorney-client relationship may be divulged but as a dilatory
trial tactic” because such objections are often used as a means of harassment.
Herring, Jr., at §4.33. Recognizing the likelihood with which these rules may
be abused by opposing parties, when a non-client litigant raises the issue of
attorney disqualification, he must prove by clear and convincing evidence that
Petition For Writ of Mandamus Page 19
4
a conflict exists and that it will prejudice the fairness of the proceedings. In re
Robinson, 90 S.W.3d 921, 925 (Tex. App.—San Antonio 2002, orig. proceeding)
(“[N]on-client litigants may move to disqualify opposing counsel, but must
prove by clear and convincing evidence that conflict exists and that it will
prejudice fairness of proceedings.”); United States v. Aleman, No. CRIM. EP.-
04-CR-1590 K, 2004 WL 1834602, at *2 n.6 (W.D. Tex. Aug. 12, 2004)
(recognizing the clear and convincing standard when the motion to disqualify
is brought by an adversary and not the former client).
A party seeking to disqualify an attorney under TEX. DISCIPLINARY R.
PROF. CONDUCT 1.09 (Conflict of Interest: Former Client) must show that
during the existence of the attorney-client relationship, factual matters were
involved that are so related to the facts in the pending litigation that a genuine
threat now exists that confidences revealed to a former attorney will be
divulged to his present adversary. See Metro. Life Ins. v. Syntek Fin. Corp.,
881 S.W.2d 319, 320–21 (Tex. 1994); NCNB Tex. Nat'l Bank v. Coker, 765
S.W.2d 398, 399–400 (Tex. 1989) (orig. proceeding). “Sustaining this burden
4See also Herring, Jr., at § 4.33 citing In re de Brittingham, 319 S.W3d 95, 98 (Tex. App.— San Antonio
2010, orig. proceeding); Smith v. Abbott, 311 S.W3d 62, 73 (Tex. App.—Austin 2010, pet. denied); In
re Sandoval 2009 WL 4891949, at *1 (Tex. App.—San Antonio 2009, orig. proceeding); In re Martel,
2007 WL 43616, at *2 (Tex. App.—Tyler, 2007, orig. proceeding); Cimarron Aric., Ltd. v. Guitar
Holding Co., L.P., 209 S.W3d 197, 201 (Tex. App.—El Paso 2006, no pet); In re Drake, 195 S.W3d 232,
235 (Tex. App.—San Antonio 2006, orig. proceeding); Lopez v. Sandoval, 2006 WL 417326, at *1 (Tex.
App.—Corpus Christi 2006, no pet.)(mem. op.); In re Bennett, 2006 WL 2403319, at *1 (Tex. App.—
Houston [14th Dist.] 2006, orig. proceeding) (mem. op.); In re A.L.S., 2006 WL 75369, at *4 (Tex. App.—
Beaumont 2006, orig. proceeding).
Petition For Writ of Mandamus Page 20
requires evidence of specific similarities capable of being recited in the
disqualification order.” Coker, 765 S.W.2d at 400. The movant may not rely on
conclusions, but must provide the trial court with sufficient information to
allow it to engage in a “painstaking analysis” of the facts. J.K. & Susie L.
Wadley Research Inst. & Blood Bank v. Morris, 776 S.W.2d 271, 278 (Tex.
App.—Dallas 1989, orig. proceeding). The movant “must delineate with
specificity the subject matter, issues, and causes of action presented in former
representation.” Id. However, superficial resemblances among issues do not
rise to the level of a substantial relationship. Morris, 776 S.W.2d at 278; Arkla
Energy Res. v. Jones, 762 S.W.2d 694, 695 (Tex. App.—Texarkana 1988, orig.
proceeding).
An attorney’s mere generalized knowledge of a client’s “inner workings”
in regard to selecting experts or fact witnesses, “preparing and responding to
discovery requests, formulating defense strategies, trial preparation, and
attending settlement conferences” do not constitute the required “specific
factual similarities” between prior and subsequent representations. In re
Drake, 195 S.W.3d 232, 236-37 (Tex. App.—San Antonio 2006, no pet).; see also
Capital City Church of Christ v. Novak, No. 03-04-00750-CV, 2007 WL
1501095, at *5 (Tex. App.—Austin 2007, no pet). Further, a “substantial
relationship” cannot be predicated upon the perceived risk of disclosure of facts
that are common knowledge, within the public domain, or that have already
Petition For Writ of Mandamus Page 21
been provided to the present adversary. Metro. Life Ins. Co., 881 S.W.2d at
321; Morris, 776 S.W.2d at 278.
As demonstrated below, the City did not met these exacting standards
required to show, by clear and convincing evidence, that the relationship
between Ogg and Trimmer-Davis was in conflict with Ready.
3.   THE CITY IS NOT ENTITED TO A PRESUMPTION THAT
OGG RECEIVED CONFIDENTIAL INFORMATION FROM
READY
Generally, if an attorney-client relationship is established, the movant
in a motion to disqualify is entitled to a presumption that if the matters are
substantially related under TEX. DISCIPLINARY R. PROF. CONDUCT 1.09(a)(3),
then the movant is not required to disclose what specific confidences were
exchanged between the lawyer and the former client that the lawyer might use
to the disadvantage to the former client. However, if an attorney-client
relationship does not exist, then the movant is required to disclose the specific
confidences exchanged in order to justify disqualification of the lawyer. Here,
because no attorney-client relationship existed between Ready and Ogg, the
City was required to establish with some specificity the specific confidences
exchanged between them.
“[T]he Texas Rules do not subject an attorney to discipline for disclosing
or using the information imparted in such preliminary consultations when the
lawyer is not retained.” 48 Robert P. Schuwerk et. al., Texas Practice: Texas
Petition For Writ of Mandamus Page 22
Lawyer & Judicial Ethics § 6:9 (2015 ed.) (citing TEX. DISCIPLINARY R. PROF.
CONDUCT 1.05(a), (b) (referring only to present and former clients)). “Moreover,
case law elsewhere has taken the view that it is inappropriate to presume
conclusively that a lawyer who engaged in preliminary consultations with a
putative client concerning a matter received confidential information
concerning that matter.” Id. (citing Howe Inv., Ltd. v. Perez Y Cia. de Puerto
Rico, Inc., 96 F. Supp. 2d 106, 110 (D. Puerto Rico 2000); O Builders &
Associates, Inc. v. Yuna Corp. of NJ, 206 N.J. 109, 19 A.3d 966, 978–79 (2011)).
“Instead, they have concluded that the appropriate balance of competing public
policies is best struck by requiring the erstwhile client to establish with some
specificity that such confidences were imparted to the lawyer whose
disqualification is sought and that those confidences could be used to the
movant's disadvantage in the matter at hand.” Id.5
5 See also Schuwerk, at 6:9 compare Cascades Branding Innovation, LLC v. Walgreen Co., 2012 WL
1570774 (N.D. Ill. 2012) (not reported in F.Supp.2d) (movant demonstrated that it revealed
information to counsel sought to be disqualified during prior consultation that could be significantly
harmful to its subsidiary in litigation brought by other counsel, but in which counsel sought to be
disqualified was representing opposing party); B.F. Goodrich Co. v. Formosa Plastics Corp., 638 F.
Supp. 1050, 1052–53 (S.D. Tex. 1986) (disqualification appropriate “if, but only if, [movant] can prove
that the firm actually received confidential information which could now be used to the detriment of
[movant]”); In re Disciplinary Proceedings Against Kostich, 2010 WI 136, 330 Wis. 2d 378, 793 N.W.2d
494 (2010) (lawyer who consulted with alleged sexual abuse victim about bringing civil suit against
alleged perpetrator and acquired significant confidential information about alleged victim in the
course of doing so, but who declined to represent alleged victim because he believed that statute of
limitations had expired on her claim, could not thereafter agree to represent alleged perpetrator in
subsequent criminal proceeding involving same alleged conduct, and was subject to discipline for
having done so) with N. Dak. St. B. Ass'n Ethics Comm., Op. 11-02, 2011 WL 1134640 (2011) (lawyer
who consulted with alleged victim of sexual abuse but, immediately upon being advised of identity of
alleged perpetrator, terminated consultation without having discovered any confidential information
concerning alleged victim because that alleged perpetrator was a close personal friend, was not
disqualified from representing accused in subsequent administrative and criminal proceedings
Petition For Writ of Mandamus Page 23
Here, no attorney-client relationship existed between Ogg and Ready. In
Ready’s affidavit filed with the City’s Motion to Disqualify, Ready refers to the
September 4, 2008 meeting with Ogg as a consultation. “In September 2008, I
consulted with Ms. Ogg . . .” (App.1:008.) Without more, a consultation does
not create an attorney-client relationship even if the prospective client paid for
the consultation. See Banc One Capital Partners Corp. v. Kniepper, 67 F.3d
1187, 1198 (5th Cir. 1995) (Although the attorney-client relationship can be
implied, courts will not readily impute the contractual relationship absent a
sufficient showing of intent.); American Mortg. Sec. Funding Corp. v. First
Louisiana Federal Sav. Bank, 1988 U.S. Dist. LEXIS 9576,9 (E.D. La. 1988) (A
consultation about possible representation did not, by itself, establish the
existence of an attorney-client relationship); B.F. Goodrich Co., 638 F. Supp.
at 1052 (finding no implied attorney-client relationship where it was clear
during an initial interview that the purported client was reserving the right to
make a decision as to whether to retain the lawyer). There is no attorney-client
growing out of alleged molestation); N.Y.C. B. Ass’n Comm. on Prof'l and Jud'l Ethics, Formal Op.
2006-2 (April 2006) (concluding (1) a law firm taking part in a “beauty contest” without ultimately
being chosen to represent prospective client may later accept the representation of a client who is
adverse to the holder of the contest in a substantially related matter if the lawyers participating in
the beauty contest presentation are screened from all involvement in the matter and apportioned no
part of the fee it generates, and (2) all firm lawyers may participate in the adverse representation,
including those involved in the “beauty contest,” if either (a) the beauty contest lawyers did not learn
any confidences or secrets; (b) those lawyers obtained an advance waiver before participating; (c) any
confidences or secrets those lawyers may have learned would not be significantly harmful to the holder
of the beauty contest in the subsequent adverse representation, or (d) any confidences or secrets those
lawyers may have learned were imparted to them for the purpose of disqualifying the firm from any
subsequent adverse representation).
Petition For Writ of Mandamus Page 24
relationship absent a showing of privity of contract. See also Parker v.
Carnahan, 772 S.W.2d 151, 156 (Tex. App.—Texarkana 1989, writ denied);
First Mun. Leasing Corp. v. Blankenship, Potts, Aikman, Hagin & Stewart,
648 S.W.2d 410, 413 (Tex. App.—Dallas 1983, writ ref'd n.r.e.); F.D.I.C. v.
Howse, 802 F. Supp. 1554, 1563 (S.D. Tex. 1992); Roberts v. Healey, 991
S.W.2d 873 (Tex.App. —Houston [14 Dist.] 1999) (simply engaging in
conversation about a divorce would not constitute an agreement to enter an
express or implicit attorney-client relationship). The City offered no evidence
to demonstrate that there was privity of contract between Ogg and Ready with
respect to the creation of an attorney-client relationship. That evidence simply
does not exist.
Thus, because Ready decided not to retain Ogg to represent him in
negotiations with Chief Hurtt or in any appeal of his 90-day temporary
suspension, the Texas Disciplinary Rules do not subject Ogg to discipline. Yet,
this does not end the inquiry. Ogg is not absolved of all responsibility to Ready.
Ogg might still be disqualified if Ready gave confidential information to Ogg
and Ogg later attempted to use that confidential information against him.
Texas law is clear that “a lawyer must preserve the confidences and secrets of
one who has ‘sought to employ him.’” B.F.Goodrich, 638 F. Supp at 1052. The
Texas Disciplinary rules clearly state that a fiduciary relationship existing
between lawyer and client . . . require preservation by the lawyer of
Petition For Writ of Mandamus Page 25
confidential information of one who has employed or sought to employ the
lawyer. TEX. DISCIPLINARY R. PROF. CONDUCT 1.05 cmt. 1 (emphasis added).
Likewise, a fiduciary relationship between an attorney and his client extends
even to preliminary consultations between the client and the attorney
regarding the attorney’s possible retention. Nolan v. Foreman, 665 F.2d 738,
739 (5th Cir. 1982) (citing Braun v. Valley Ear, Nose, and Throat Specialists,
611 S.W.2d 470 (Tex.Civ.App.-Corpus Christi 1980, no writ.)).
However, if the City had shown that the matters (this underlying lawsuit
and Ready’s disciplinary situation were “substantially related,” the City would
have been entitled to a presumption that Ogg obtained Ready’s confidential
information. Instead, in order to disqualify Ogg, the City was required to
disclose and establish with specificity the actual confidences Ogg learned from
Ready and how those confidences could be used to Ready’s disadvantage. See
In re Gerry, 173 S.W.3d 901 (Tex. App. – Tyler 2005) (mandamus denied on
the basis that it was proven at trial that the lawyer received confidential
information). The City failed to show (1) what confidential information Ready
disclosed to Ogg and (2) how Ogg could have used those confidences against
Ready. The City failed to satisfy their burden, and Judge Baker abused her
discretion in sustaining the City’s motion without requiring the City prove
Petition For Writ of Mandamus Page 26
these elements by clear and convincing evidence.6
4.   OGG’S REPRESENTATION OF TRIMMER-DAVIS IS NOT
“ADVERSE” TO READY (WITHIN THE MEANING OF RULE
1.09(a))7
If this Court were to find the existence of an attorney-client relationship
between Ready and Ogg, the next step is to turn to the grounds contained in
TEX. DISCIPLINARY R. PROF. CONDUCT 1.09 and determine whether the City has
established any of these by clear and convincing evidence. As a threshold
matter, each ground for disqualification is predicated upon a finding that Ogg’s
representation of Trimmer-Davis was “adverse” to Ready. TEX. DISCIPLINARY
R. PROF. CONDUCT 1.09, as specifically found in subsection (a), requires the
City to show that Ogg’s representation of Trimmer-Davis was “adverse” to
Ready. However, nothing this section and in remaining sections that follow
discussing the applicability TEX. DISCIPLINARY R. PROF. CONDUCT 1.09 shall be
6The City argued that they were not required to show that confidential information was exchanged
between Ogg and Ready at the September 4, 2008 primary consultation. City argued that “they assert
the Defendants have the burden to show she possesses confidential information which is prejudicial to
Captain Ready by specifically identifying the confidential information. In other words Captain Ready
should be required to disclose any confidential information he provided to Ms. Ogg as precondition to
asserting she may not use this information to the advantage of a different client.” (App 4:006-7.) The
City claimed that there was no authority for this position.
7 The City argued in their Motion to Disqualify that TEX. DISCIPLINARY R. PROF. CONDUCT 1.06 is also
applicable to the facts of the instant case. However, Ready is not a current client of Ogg. TEX.
DISCIPLINARY R. PROF. CONDUCT 1.06 does not apply because it only applies to current clients. “In the
situation here considered, if the lawyer had in the past represented the creditor, but did not currently
represent the creditor in any matter, . . . Rule 1.09, rather than Rule 1.06 of the Texas Disciplinary
Rules of Professional Conduct would have to be considered.” PEC Op. 645 (2014).
Petition For Writ of Mandamus Page 27
construed as waiving Trimmer-Davis’ previous assertions that Ready was not
a former client of Ogg and that the City failed to show the specific confidences
exchanged between them.
“Whether the matter is adverse to former client . . . and therefore Rule
1.09(a) is applicable will depend upon the likelihood and degree to which the
current representation may result in legal, financial, or other identifiable
harm.” See PEC Op. 584 (2008). There must be some demonstration that the
second representation is “adverse” to the former client. Id.; TEX. DISCIPLINARY
R. PROF. CONDUCT 1.09(a.) For purposes of the ethical prohibition of Rule 1.09,
adversity has been described as “a product of the likelihood of the risk and the
seriousness of its consequences.” Nat’l Med. Enters, v. Godbey, 924 S.W.2d 123,
132 (Tex.1996) (orig. proceeding). “Applying this test, the Court [in Godbey]
disqualified a law firm from representing patients in a lawsuit against a
company that operated psychiatric hospitals because a lawyer in the firm had
previously represented the defendant company’s regional hospital
administrator during an investigation of the company. Even though the
administrator was not a party to the current suit, the Court held that the
interests of the law firm’s current clients were adverse to the former client’s
interests because the litigation posed a small risk of leading to criminal or civil
proceedings against the former client.” PEC Op. 584 (2008) (citing Selby v.
Revlon Consumer Products Corp., 6 F. Supp. 2d 577 (N.D. Tex. 1997)
Petition For Writ of Mandamus Page 28
(representation of current client in sexual harassment suit was materially
adverse to former client, whose testimony in current client’s case could expose
her to defamation claims and damage her business reputation.)).
Here, based on the allegations contained in the disqualification motion
and the evidence presented in support of it, the consequences to Ready of any
disclosures arising from Ogg’s representation of Trimmer-Davis cannot be
presumed to be adverse or serious to Ready. The City speculations regarding
the use of Ready’s 90-day temporary suspension as impeachment evidence at
trial, even if accepted as true, are not adverse to Ready within the meaning of
TEX. DISCIPLINARY R. PROF. CONDUCT 1.09(a). (App.1:002.) Additionally,
Ready accepted full responsibility for his actions giving rise to the 90-day
temporary suspension and also accepted responsibility for any adverse
consequences, either civil or criminal, resulting from the suspension.
(App.2:022.) Even if Ogg used the 90-day temporary suspension at trial
(assuming that Judge Baker would allow the evidence to be presented to the
jury), no evidence existed to show that it would subject Ready to any further
civil or criminal damage. By accepting full responsibility for his actions, by
taking a full 90-day suspension in lieu of termination, the damage to Ready, if
any, has already been done.8
8 Contrast this case with an example provided by the Texas Center for Legal Ethics. “For example,
such a probability would normally exist in the circumstances here considered if C admitted drug abuse
to Lawyer in the course of Lawyer’s earlier representation of C and Client in the subsequent matter
Petition For Writ of Mandamus Page 29
5.   OGG’S REPRESENTATION OF TRIMMER-DAVIS DOES
NOT QUESTION THE VALIDITY OF PRIOR WORK
PERFORMED BY OGG FOR READY (WITHIN THE
MEANING OF RULE 1.09(a)(1))
The next ground for disqualification under TEX. DISCIPLINARY R. PROF.
CONDUCT 1.09(a)(1) provides that Ogg may be disqualified if “other person
questions the validity of the lawyer’s services or work product for the former
client.” Here, Trimmer-Davis does not question the validity of Ogg’s services,
if any, provided to Ready. Likewise, Ogg’s representation of Trimmer-Davis
does not involve the validity of prior work by Ogg for Ready within the meaning
of TEX. DISCIPLINARY R. PROF. CONDUCT 1.09(a)(1). TEX. DISCIPLINARY R. PROF.
CONDUCT 1.09(a)(1) is not applicable to the facts of the instant case.
6.   A REASONABLE PROBABILITY DOES NOT EXIST
(WITHIN THE MEANING OF RULE 1.09(a)(2)) THAT OGG’S
REPRESENTATION OF TRIMMER-DAVIS WOULD CAUSE
OGG TO VIOLATE OBLIGATIONS OF CONFIDENTIALITY
OWED TO READY UNDER RULE 1.05
The next ground for disqualification under TEX. DISCIPLINARY R. PROF.
CONDUCT 1.09(a)(2) provides that Ogg may be disqualified “if the
representation in reasonable probability will involve a violation of Rule 1.05.”
Here, a reasonable probability does not exist that Ogg’s representation of
Trimmer-Davis would cause Ogg to violate obligations of confidentiality owed
sought modification of the child custody order based in part on allegations concerning C’s character.”
PEC Op. 584 (2008).
Petition For Writ of Mandamus Page 30
to Ready under DISCIPLINARY R. PROF. CONDUCT 1.05.
TEX. DISCIPLINARY R. PROF. CONDUCT 1.09(a)(2) suggests an attorney
withdraw from representation “if the representation in reasonable probability
will involve a violation of Rule 1.05.” TEX. DISCIPLINARY R. PROF. CONDUCT
1.09(a)(2). Rule 1.05 addresses confidential information from a client. Id. at
1.05.
“[T]he law only allows a lawyer to make adverse use of a former client’s
confidential information if it has become generally known since the lawyer
acquired it.” Schuwerk, at § 6:9 (citing TEX. DISCIPLINARY R. PROF. CONDUCT
1.05(b)(3) (allowing a lawyer to use confidential information of a former client
to that person’s disadvantage after that representation has been concluded, “if
the confidential information has become generally known”). Likewise, “Rule
1.05(b)(3) generally prohibits a lawyer from using confidential information of
a former client to the disadvantage of the former client after the representation
is concluded unless the former client [1] consents after consultation or [2] the
confidential information has become generally known.” PEC Op. 584 (2008).
Here, Ready has not consented to disclosure. However, any confidential
information that was exchanged between Ready and Ogg became “generally
known” within the meaning of TEX. DISCIPLINARY R. PROF. CONDUCT 1.05(b)(3).
Ready’s 90-day temporary suspension letter, as well as investigatory file of the
Petition For Writ of Mandamus Page 31
Internal Affairs Department, are public records held by the City. (App.2:011.)9
Ready accepted full responsibility for his actions publicly when he accepted,
rather than challenged, the City’s disciplinary sanction against him.
(App.2:022.) Ready’s actions and the City’s suspension of Ready were reported
by Wayne Dolcefino in the news media in 2008. (App.2:009.) Thus, if Ready
disclosed any confidential information to Ogg, none of that information
remained confidential. It became public information when Ready accepted his
suspension and retained his job with the City.
7.   OGG’S REPRESENTATION OF TRIMMER-DAVIS IS NOT
THE “SAME” (WITHIN THE MEANING OF RULE 1.09(a)(3))
AS THE MATTER INVOLVING READY
9 Although the City marked Ready’s suspension letter with the words “confidential” at the bottom
when they produced it in discovery, it, as well as all investigatory materials relating to Ready’s
suspension, are not confidential under Section 143.089 and 143.1214 of the Local Government Code.
See Local Gov’t Code §§ 143.089, 143.1214. The 2011 Meet and Confer Agreement likewise provides
disclosure once a court has determined that the records are relevant to the pending matter and a
protective order has been signed. Ogg only received a copy of Ready’s September 11, 2008 90-day
temporary suspension letter in discovery. (App.2:010; App.2:017-022.) Ogg did not receive a copy the
investigatory materials.
In further support of the above, the Texas Attorney General clearly holds that all investigatory
materials in a case resulting in disciplinary action are “from the employing department” when they
are held by or are in the possession of the department because of its investigation into a police officer’s
misconduct, and the department must forward them to the civil service commission for placement in
the civil service personnel file. Abbott v. Corpus Christi, 109 S.W.3d 113,122 (Tex. App.—Austin 2003,
no pet.) Such records may not be withheld under section 552.101 of the Government Code in
conjunction with section 143.089 of the Local Government Code. See Local Gov't Code § 143.089(f);
Open Records Decision No. 562 at 6 (1990); Open Records Decision No. 419 (2012).
Additionally, Article 31, section 12, 2011 Meet and Confer Agreement states “In any cause of action,
civil or criminal, no file, or any party thereof, maintained pursuant to § 143.089(g) shall be released to
any party to the action until relevancy is judicially determined and an application for a protective
order limiting the use of such file in that cause of action has filed.” 2011 Meet and Confer Agreement,
available at: http://www.hpou.org/docs/meetandconfer.pdf (effective May 29, 2015).
Petition For Writ of Mandamus Page 32
The next ground for disqualification under TEX. DISCIPLINARY R. PROF.
CONDUCT 1.09(a)(3) provides that Ogg may be disqualified if the former
representation is the “same” as the current representation. Here, Ready’s
matter involved a 90-day temporary suspension. Trimmer-Davis’ current
matter involves relation and discrimination. Ogg’s representation of Trimmer-
Davis not the “same” (within the meaning of TEX. DISCIPLINARY R. PROF.
CONDUCT 1.09(a)(3)) as the matter involving Ready.
8.   OGG’S REPRESENTAITON OF TRIMMER-DAVIS IS NOT
“SUBSTANTIALY RELATED” TO READY’S 90-DAY
TEMPORARY SUSPENSION (WITHIN THE MEANING OF
RULE 1.09(a)(3))
The next ground for disqualification under TEX. DISCIPLINARY R. PROF.
CONDUCT 1.09(a)(3) provides that Ogg may be disqualified if the former
representation is “substantially related” to the current representation. Here,
Ogg’s representation of Trimmer-Davis is not “substantially related” to
Ready’s 90-day temporary suspension
The City failed to establish that a single factual matter Ogg may have
learned from Ready during his ‘preliminary consultation’ was related to the
facts in Trimmer-Davis’ case sufficient to create a genuine threat that Ready’s
confidences will be divulged to a present adversary..10 See Metro. Life Ins., 881
10 Ready and Trimmer-Davis are not adversaries in terms of parties against each other in the same
litigation. The City and Trimmer-Davis are adversaries.
Petition For Writ of Mandamus Page 33
S.W.2d at 320–21; Coker, 765 S.W.2d at 399–400. “Sustaining this burden
requires evidence of specific similarities capable of being recited in the
disqualification order.” Coker, 765 S.W.2d at 400The movant may not rely on
conclusions, but must provide the trial court with sufficient information to
allow it to engage in a “painstaking analysis” of the facts. Morris, 776 S.W.2d
at 278. The movant “must delineate with specificity the subject matter, issues,
and causes of action presented in former representation.” Id. Superficial
resemblances among issues do not rise to the level of a substantial relationship.
Morris, 776 S.W.2d at 278; Arkla Energy, 762 S.W.2d at 695.
A “substantial relationship” cannot be predicated on the perceived risk
of disclosure of facts that are common knowledge, within the public domain, or
that have already been provided to the present adversary. Metro. Life Ins. Co.,
881 S.W.2d at 321; Morris, 776 S.W.2d at 278. Here, the information Ready
gave Ogg, if any, regarding the 90-day temporary suspension became public
information, ie. common knowledge long before Trimmer-Davis filed suit
against the City. Accordinly, the City disclosed Ready’s 90-day suspension in
discovery in Trimmer-Davis’ case, having made the document public by filingit
in Ready’s civil service file in 2008. (App.2:011.)
The Supreme Court of Texas upheld the denial of disqualification where
the supposedly confidential information provided to the challenged attorney
was readily available in public. Metro. Life Ins. Co., 881 S.W.2d at 321.
Petition For Writ of Mandamus Page 34
Similarly, in In re Cap Rock Electric Co-op., Inc., 35 S.W.2d 222, 231 (Tex.
App.—Texarkana 2000, orig. proceeding), the court upheld the denial of a
motion to disqualify because the record did not demonstrate how any
confidential information imparted to the attorney by his former client could be
detrimental to the former client’s interest in the subsequent litigation.
Likewise, in Lopez v. Sandoval, 2006 WL 417326, at *3 (Tex. App.—Corpus
Christi 2006 no. pet), the trial court denied a motion to disqualify and the
appellate court reasoned, “While [plaintiffs] are not required to divulge the
confidences discussed with the lawyer, [they are] required to make a general
showing that some confidences which would relate to [the present case] were
discussed.” (Emphasis added.) The Beaumont Court of Appeals also upheld the
denial of a motion to disqualify because there was no evidence that the lawyer
and former client shared any confidences about whether the property at issue
in the pending case had anything to do with the previous case. Simon v. Floyd,
1997 WL 30922, at *2 (Tex. App.—Beaumont 1997, no writ) (not designated for
publication) (requiring showing of “actual prejudice” under Rule 1.09
challenge). The El Paso Court of Appeals held there was no evidence of any
exposure of any confidences by defendant to his lawyers in other litigation
which would enhance plaintiff’s posture in its suit against defendant, or
undermine defendant’s position in this suit. Conoco v. Baskin, 803 S.W.2d 416,
422 (Tex. App.—El Paso 1991, no writ).
Petition For Writ of Mandamus Page 35
The sparse “evidence” presented by the City does not even come close to
meeting such exacting standards. At most, it shows a meeting between Ogg
and a prospective client about matters that were later disclosed to the public.
Ogg’s affidavit suggested that the meeting with Ready likely included the
possibility of appealing the discipline, but Ready did not retain Ogg to
represent him in negotiations with the Chief, nor did he appeal the 90-day
temporary suspension. Ready accepted the suspension in lieu of termination.
(App.2:022.) There is no indication that Ogg and Ready exchanged any
confidences or any facts that could remotely be considered confidential. None
of the witnesses deposed by Scott Poerschke referred to any confidences or
evidence about Ready that was not already public information and knowledge.
(App 1:012; App 1:016; App 1:023.)
Additionally, Judge Baker failed to cite any specific similarities between
this case and Ogg’s prior consultation with Ready. The Texas Supreme Court
is clear that “sustaining this burden [of substantial relationship] requires
evidence of specific similarities capable of being recited in the disqualification
order.” Coker, 765 S.W.2d at 400. Likewise, “[t]he vagueness of the court’s
order indicates that the substantial relationship test was not used; had it been,
the court should have been able to state without difficulty the precise factors
establishing a substantial relationship between the two representations.” Id.
Here, Judge Baker did not cite any specific similarities between the two
Petition For Writ of Mandamus Page 36
matters sufficient to show a “substantial relationship” to merit disqualification
under TEX. DISCIPLINARY R. PROF. CONDUCT 1.09(a)(3). Judge Baker’s
disqualification order makes no mention of any basis for Ogg’s disqualification.
Thus, as Coker infers, Judge Baker did not utilize the substantial relationship
test to disqualify Ogg because the specific similarities would have been
outlined in her Order.
9.   THE CITY HAS FAILED TO SHOW “ACTUAL PREJUDICE”
The party seeking to disqualify an attorney bears the burden of proving
that disqualification is warranted. Coker, 765 S.W.2d at 400; Milliken v.
Grigson, 986 F. Supp. 426 (S.D. Tex. 1997). Absent a compelling reason, a court
should not deprive litigants of a right to be represented by counsel of choice
because such deprivation can result in immediate and palpable harm. In re
Vossdale Townhouse Ass’n, Inc., 302 S.W.3d 890, 893 (Tex. App.—Houston
[14th Dist.] 2009, orig. proceeding). Therefore, mere allegations of unethical
conduct or evidence showing a remote possibility of a violation of the
disciplinary rules will not suffice to merit disqualification. Keith v. Solls, 256
S.W.3d 912, 917-918 (Tex. App.— Dallas 2008, orig. proceeding) (citing Spears
v. Fourth Court of Appeals, 797 S.W.2d 654, 656 (Tex. 1990)). Nor is evidence
showing a possible future violation will not be sufficient to disqualify counsel.
In re Interest of A.M., 974 S.W.2d 857, 864 (Tex. App.—San Antonio 1998, no
pet.). Rather, “the movant must establish with specificity a violation of one or
Petition For Writ of Mandamus Page 37
more of the disciplinary rules.” Herring, Jr., at § 4.33 (citing Spears, 797
S.W.2d at 656); accord In re Sandoval, 2009 WL 4891949, at *1 (Tex. App.—
San Antonio 2009, orig. proceeding); In re Martel, 2007 WL 43616, at *2 (Tex.
App.—Tyler, 2007, orig. proceeding); Cimarron Arig., Ltd. v. Guitar Holding
Co., L.P. 209 S.W.3d 197, 201 (Tex. App.—El Paso 2006, no pet.). “In
considering a motion to disqualify opposing counsel, the trial court must
strictly adhere to an exacting standard to discourage a party from using the
motion as a dilatory trial tactic.” In re Nitla S.A. de C.V., 92 S.W.3d 419, 422
(Tex. 2002). To prevent misuse of the rule on disqualification of an opposing
counsel, the party seeking disqualification must demonstrate actual prejudice
to itself resulting from the opposing lawyer’s service in dual roles and
violations of a disciplinary rule. In re Nitla, 92 S.W.3d at 422; Ayres v. Canales,
790 S.W.2d 554, 558 (Tex. 1990) (orig. proceeding). In a case involving a motion
to disqualify under Rule 1.10, a court held that “‘[e]ven if a lawyer violates a
disciplinary rule, the party requesting disqualification must demonstrate that
the opposing lawyer's conduct caused actual prejudice that requires
disqualification.’” Smith, 311 S.W.3d at 73 (citing In re Nitla); see also In re
McDaniel, No. 10-04-00166-CV, 2006 WL 408397, at *3 (Tex. App.—Waco 2006,
orig. proceeding) (applying the Nitla standard of showing “actual prejudice”
where disqualification was premised on Rule 1.09); In re Dalco, 186 S.W.3d
660, 668 (Tex. App.—Beaumont 2006, orig. proceeding) (applying Nitla in a
Petition For Writ of Mandamus Page 38
conflict of interest challenge); In re Southwestern Bell Yellow Pages, Inc., 141
S.W.3d 229, 232 (Tex. App.—San Antonio 2004, orig. proceeding) (applying
Nitla to a Rule 1.06 conflict challenge) (emphasis added). The mere allegation
of potential prejudice is insufficient to warrant the extreme remedy of
disqualification. Id.; Ghidoni v. Stone Oak, Inc., 966 S.W.2d 573, 579 (Tex.
App.—San Antonio 1998, pet. denied).
In Ussery v. Gray, 804 S.W.2d 232, 237 (Tex. App.—Forth Worth 1991,
no pet.), the court determined a prior attorney-client relationship existed and
the two suits at issue were substantially related. However, the motion was
denied because the disqualification proponent did not demonstrate actual
prejudice. Id. Likewise, in In re Hilliard, the court denied a motion to disqualify
a lawyer in a spousal support case, in part because there was no showing of
actual prejudice resulting from the attorney’s prior representation of the
former client in a grievance proceeding. In re Hilliard, No. 13-05-223-CV, 2006
WL 1113512, at *3-4 (Tex. App.—Corpus Christi Apr. 27, 2006, pet. denied)
(motion to disqualify premised on Rule 1.09). While the attorney in question
may have expressed his personal opinions in a previous action, those opinions
were not “confidences” that would ultimately prejudice either party. Id. at *4.
In In re Works, the court recognized the absence of prejudice because the
information allegedly revealed by one client would have been revealed to the
other. In re Works, 118 S.W.3d 906, 909 (Tex. App.—Texarkana 2003, orig.
Petition For Writ of Mandamus Page 39
proceeding). Because the two adverse parties had previously been on the same
side in litigation, the court wrote that “there is no threat that ‘confidences that
were revealed to the former attorney will be revealed by that attorney to its
present adversary.’” Id. at 909 (quoting In re Cap Rock, 35 S.W.3d at 230). The
information that was supposedly a “confidence” in In re Works was already
known by both parties in the challenged case. Id. In such instances, no
prejudice can be shown.
TEX. DISCIPLINARY R. PROF. CONDUCT 1.06 cmt. 10 contemplates this
problem and requires a showing of prejudice. The comment states:
Rule 3.08 sets out a disciplinary standard and is not well suited to
use as a standard for procedural disqualification. . . . A lawyer may
represent parties having antagonistic positions on a legal question
that has arisen in different cases, unless representation of either
client would be adversely affected. Thus, it is ordinarily not
improper to assert such positions in cases pending in different trial
courts, but it may be improper to do so in cases pending at the
same time in an appellate court.
TEX. DISCIPLINARY R. PROF. CONDUCT 1.06 cmt. 9, 10. Comment 10 requires
the City to demonstrate that they would be “adversely affected” by showing
prejudice. Id.
Here, the City offered no evidence establishing actual prejudice to Ready.
Ready’s affidavit is devoid of a single articulable fact that demonstrates harm.
In fact, the City’s only complaint involves the potential use by Trimmer-Davis
of Ready’s 90-day temporary suspension as impeachment evidence at trial.
Petition For Writ of Mandamus Page 40
However, while referenced in the body of their Motion to Disqualify, no
evidence was presented by the City to support prejudice. It is well settled that
statements and allegations contained in pleadings are not evidence. See United
States v. Marks, 949 S.W.2d 320, 326 (Tex. 1997) (“[A]n attorney's unsworn
statements are not evidence....”); Laidlaw Waste Sys. (Dallas), Inc. v. City of
Wilmer, 904 S.W.2d 656, 660 (Tex. 1995) (“Generally, pleadings are not
competent evidence, even if sworn or verified.”). As such, the City failed to
meet their burden by clear and convincing evidence, and their Motion to
Disqualify should have failed as a matter of law. Moreover, Ready’s 90-day
temporary suspension was public information and commonly known. As a
result of the suspension, Ready retained his job with the City. All of this was
reported in the news. The City even produced Ready’s 90-day temporary
suspension in discovery. These matters cast suspicion upon the City’s reason
for filing the motion – not out of any concern for Ready, but as a procedural
vehicle to disqualify Ogg and obtain an unfair advantage over Trimmer-Davis
at trial by requiring her to procure new counsel prior to the matter being tried
to a jury.
10.   EVEN IF OGG IS DISQUALIFIED UNDER THE RULES
FROM REPRESENTING TRIMMER-DAVIS, PUBLIC
POLICY DOES NOT WARRANT DISQUALIFICATION IN
THIS CASE
The Texas Supreme Court has repeatedly observed that “[t]he Texas
Petition For Writ of Mandamus Page 41
Disciplinary Rules of Professional Conduct do not determine whether counsel
is disqualified in litigation, but they do provide guidelines and suggest the
relevant considerations.” Godbey, 924 S.W.2d at 132. In In re Users System
Services, the Texas Supreme Court also noted:
As we said recently in In re Epic Holdings, Inc., “[w]e have
repeatedly observed that ‘[t]he Texas Disciplinary Rules of
Professional Conduct do not determine whether counsel is
disqualified in litigation, but they do provide guidelines and
suggest the relevant considerations.’” Technical compliance with
ethical rules might not foreclose disqualification, and by the same
token, a violation of ethical rules might not require disqualification.
In re Users System Services, Inc., 22 S.W.3d 331, 334 (Tex. 1999) (footnote
omitted).11 In Burt Hill, Inc. v. Hassan, No. Civ. A. 09-1285, 2010 WL 419433
(W.D. Pa. 2010) (not reported in F.Supp.2d), a lawyer who supposedly received
opposing party’s confidential documents from an anonymous source on several
occasions could have been disqualified for doing so, but as a lesser sanction
would instead be prohibited from using any of the information that he received
or seeking it in subsequent discovery.
In the instant case, the alleged confidential information shared between
11“Because the Texas Rules are standards of discipline only, and so not necessarily suited to serve as
standards for disqualification of counsel, both the Preamble and the commentary to various of these
Rules cautioned courts to consider the full range of policy issues applicable to such motions, and not
to apply the disciplinary rules blindly in determining them. In addition, various comments to these
Rules also reminded courts of the wellknown fact that motions to disqualify counsel are often filed
purely for tactical reasons, even though there is no substantial likelihood that the moving party could
be unfairly prejudiced by the continued representation of an opposing party by the attorneys it wishes
to disqualify. For this reason, too, these comments cautioned against a ‘Caesar’s wife’ approach to
motions to disqualify counsel.” Schuwerk, at § 6:9 (citations omitted).
Petition For Writ of Mandamus Page 42
Ogg and Ready is immaterial to Trimmer-Davis’ case.12 Ogg indicated in her
affidavit that the purpose of using Ready’s 90-day temporary suspension was
to show bias against Trimmer-Davis by Internal Affairs Investigators (“IAD”)
who investigated her discipline. (App.2:013.)13 But, bias may be shown by a
multitude other means that do not raise TEX. DISCIPLINARY R. PROF. CONDUCT
RULE 1.09 concerns. With this in mind, Ogg previously argued that an
appropriate remedy in this cause would be to exclude any evidence of Ready’s
90-day suspension and prohibit Ogg from questioning witnesses about it at
trial. (App.2:013 – 14.) This would have the effect of allowing Ogg to continue
to represent Trimmer-Davis while at the same time protecting Ready from any
possible disclosure of confidences expressed to Ogg about his situation. By
bringing up this option, Trimmer-Davis does not waive any of her previous
arguments.
Additionally, this is a case involving very specialized knowledge relating
to the policies and procedures of the Houston Police Department. As a former
employee of the City well-versed in the employment practices of the Houston
12“When the ‘related facts’ are community knowledge or immaterial to a determination of the litigated
issues, disqualification is not necessary.” Insurance of America Agency Inc. v. Life Investors Insurance
Company, 1997 WL 466529, No. 05-95-00923-CV, at *2 (Tex.App.—Dallas 1997).
13The City confuses the importance of Ready testifying in this case in general with the importance of
the 90-day temporary suspension in an attempt to overstate the relative importance of the 90-day
temporary suspension. (App.4:002.) But, the 90-day temporary suspension, removed from other
aspects of the Trimmer-Davis’ case that Ready may testify to at trial, is a very minor and insignificant
part of this case. This case spanned from 2008 to 2011 and involved over 20 different witnesses in
multiple department of the Houston Police Department. One 90-day temporary suspension does not
warrant complete disqualification of Ogg.
Petition For Writ of Mandamus Page 43
Police Department, Ogg has successfully tried numerous cases against the City
on behalf of other police officer plaintiffs. The likelihood of Trimmer-Davis
locating new counsel with comparable skill and experience in the policies and
procedures of the Houston Police Department, willing to take Trimmer-Davis’
case to trial is low.
11.   THERE IS NO ADEQUATE REMEDY BY APPEAL
Appeal is not an adequate remedy for a trial court’s erroneous
disqualification of a party’s chosen counsel. In re Butler, 987 S.W.2d 221, 224
(Tex. App.—Houston [14th Dist.] 1999, orig. proceeding) (“appeal from an order
granting a motion to disqualify is inadequate because such an order results in
immediate and palpable harm that disrupts the trial proceeding and deprives
a party of the right to have counsel of its choice”) (citing Schwartz v. Jefferson,
930 S.W.2d 957, 959 (Tex. App.—Houston [14th Dist.] 1996, orig. proceeding).
“Because disqualification may result in immediate and palpable harm to a
party by disrupting the trial proceedings and depriving the party of his or her
counsel of choice,” a trial court's ruling granting a motion to disqualify counsel
is reviewable by mandamus. In re Chonody, 49 S.W.3d 376, 379 (Tex. App.—
Fort Worth 2000, no pet.)
As such, there is no adequate remedy by appeal in this case.
Petition For Writ of Mandamus Page 44
PRAYER
[TRAP 52.3(i)]
Ogg respectfully requests the Court to issue a writ of mandamus
ordering Respondent to vacate the January 14, 2015 Order disqualifying the
Kim K. Ogg, R. Scott Poersckhe, and The Ogg Law Firm, PLLC from
representing Trimmer-Davis and enter an order denying the Defendant’s
Motion to Disqualify.
Respectfully submitted,
/s/ R. Scott Poerschke
Kim K. Ogg
State Bar No. 15230200
kimogg@ogglawfrim.com
R. Scott Poerschke
State Bar No. 24067822
scott@ogglawfrim.com
THE OGG LAW FIRM, PLLC
3215 Mercer, Suite 100
Houston, Texas 77027
(713) 974-1600 – Telephone
(713) 621-2106 – Fax
Petition For Writ of Mandamus Page 45
CERTIFICATION
[TRAP 52.3(j)]
The undersigned has reviewed the petition and concluded that every
factual statement in the petition is supported by competent evidence included
in the appendix.
/s/ R. Scott Poerschke
R. Scott Poerschke
CERTIFICATE OF SERVICE
[TRAP 9.5(d)]
I, R. Scott Poerschke, certify that on June 1, 2015 a true and correct copy
of the Petition for Writ of Mandamus and Relator’s Appendix were sent by the
method indicated to the following individuals:
Henry N. Carnaby
CITY OF HOUSTON
P.O. Box 368
Houston, Texas 77001-368
900 Bagby, 3rd Floor
Houston, Texas 77002
(832) 393-6309 – Telephone
(832) 393-6259 – Fax
Via Email henry.carnaby@houstontx.gov
Via CM/RRR 7011-3500-0002-2609-4723
Suzanne R. Chauvin
CITY OF HOUSTON
P.O. Box 368
Houston, Texas 77001-368
900 Bagby, 3rd Floor
Houston, Texas 77002
(832) 393-6309 – Telephone
(832) 393-6259 – Fax
Via Email suzanne.chauvin@houstontx.gov
Via CM/RRR 7011-3500-0002-2609-4723
Petition For Writ of Mandamus Page 46
The Honorable Caroline Baker
295th Judicial District Court
201 Caroline, 14th Floor
Houston, Texas 77002
(713) 368-6450 – Telephone
Via CM/RRR 7011-3500-0002-2609-4716
/s/ R. Scott Poerschke
R. Scott Poerschke
CERTIFIACTE OF COMPLIANCE
This is to certify that this petition contains a total of 10,282 words and
was drafted on MS Word 2011 using the typeface of “Century Schoolbook” in
13pt font for text and 10pt font for footnotes.
/s/ R. Scott Poerschke
R. Scott Poerschke
Petition For Writ of Mandamus Page 47