in Re: Elusive Holdings, Inc.

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-19-00809-CV

In re Elusive Holdings, Inc.

ORIGINAL PROCEEDING FROM TRAVIS COUNTY

MEMORANDUM OPINION

Relator Elusive Holdings, Inc. has filed a petition for writ of mandamus seeking

relief from an order signed by the trial court on October 28, 2019, disqualifying Elusive’s

attorney, Tom Murphy, from representing the company in its lawsuit against former shareholder

and real party in interest Jacob White. We will conditionally grant mandamus relief.

FACTUAL BACKGROUND

In September 2019, Elusive sued White, Elusive’s former Chief Operating

Officer, alleging that White had violated a nondisclosure-confidentiality agreement and had

taken property belonging to Elusive. It asserted claims for breach of contract and breach of

fiduciary duty, sought injunctive relief, and asked for punitive damages and attorney’s fees.

White filed a motion to disqualify that reads in full:

This Motion to Disqualify Attorney is brought by Defendant, Jacob White, who

shows in support: That Mr. Tom Murphy has previously consulted and

represented Defendant in matters which could make it impossible to adequate

maintain the Attorney/Client relationship in this proceeding. Defendant, Jacob

White prays that the Court grant the Motion to Disqualify Attorney.

The trial court held a hearing on the motion, during which the court asked if

White was going to put on evidence. White’s attorney responded, “My client is here. He could

testify, but I don’t believe he needs to, to lay out the specific allegations.” No evidence was

presented, and the trial court only heard argument from the parties’ attorneys.

White’s attorney explained that White was one of two partners in Elusive, along

with Justin Blackburn, and that Blackburn had ousted White. He further stated that attorney

Murphy had been Elusive’s attorney for some time and that:

I know that [Murphy] has drafted numerous documents, but the subsidiary

company, it’s a essentially a group of LLCs, which includes Elusive Aviation,

Trunnion Aviation, Trinity Growth Partners. Many of these he has actually

drafted the formation documents for the subsidiaries. They all—well, four of

them do list my client as the director. He consulted with the company daily on its

runnings—or not daily—but periodically on its runnings. My client did reach out

to him as general counsel for the company and [Murphy] did advise both

Blackburn and Mr. White on the daily runnings of the company. Now, there’s a

dispute as to who owns the company and the valuation of the company, and

essentially general counsel is representing one of the two equal owners.

Murphy then responded on behalf of Elusive, saying:

I don’t represent Justin Blackburn at all on this. I represent Elusive Holdings.

Elusive Holdings is a construction company primarily doing business building

restaurants in the state of Texas. Elusive Holdings has several subsidiary

companies they had formed and stuff, and I did form some of those companies;

but all that time was as a legal counsel for Elusive Holdings or those subsidiary

companies, never Mr. Blackburn, never Mr. White during that.

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Murphy explained that he had represented White in a private landlord-tenant dispute in 2017,

when White was still an officer of Elusive. He also said that he had given White the names of

several family lawyers for White’s recent divorce proceeding. Murphy said,

So that’s the extent of my representation of him. I’ve always represented Elusive

Holdings. I did not form Elusive Holdings. They already formed, came to me. I

represented them in numerous construction matters, and then I have also formed

companies that are subsidiaries and owned in part by Elusive Holdings. . . . There

are currently two principal shareholders; Mr. Blackburn and Mr. White. Through

the mechanisms of the company, Mr. White was—his employment was

terminated, and he was ousted from the board. He’s still a shareholder, so that’s

not the issue here. What the underlying lawsuit of this case is, Your Honor, is Mr.

White signed a nondisclosure agreement and confidentiality agreement. We’re

alleging he violated that agreement, and we’re also alleging that he took property

of Elusive Holdings and he’s maintaining it for himself. So the issues and the

facts are entirely separate. There’s no substantial connection. They’re not

substantially related and they’re not substantially similar. There is no facts of my

representation of Mr. White in the landlord-tenant case that would overlap into

the dispute of him violating his nondisclosure and confidentiality agreement and

the allegation of him taking property that’s owned by Elusive. And that really is

the standard here, Your Honor.

At that point, the trial court ruled that it was going to grant the motion to

disqualify because it would not prejudice Elusive to retain new counsel at the early stages of the

proceeding. It further stated that it was “so easy to slip into an attorney-client privilege

relationship with someone even when we don’t realize we’re doing it; and, above all else, we

need to avoid even an appearance of impropriety or a conflict.” White had not brought an order

for signature, so the trial court transformed the motion to disqualify into an order, signing the

motion and writing on it, “Granted this 28th day of Oct, 2019.” Elusive then filed its petition for

mandamus relief.

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APPLICABLE RULES AND CASELAW

Disqualification is a severe remedy. The courts must adhere to an exacting

standard when considering motions to disqualify so as to discourage their use as a

dilatory trial tactic. Thus, the burden is on the movant to establish with specificity

a violation of one or more of the disciplinary rules. Mere allegations of unethical

conduct or evidence showing a remote possibility of a violation of the disciplinary

rules will not suffice under this standard.

Spears v. Fourth Court of Appeals, 797 S.W.2d 654, 656 (Tex. 1990) (citations omitted); see

also In re Chonody, 49 S.W.3d 376, 379-80 (Tex. App.—Fort Worth 2000, orig. proceeding).

As for the disciplinary rules, Rule 1.09 governs conflicts of interest between

current and former clients:

(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:

(1) in which such other person questions the validity of the

lawyer’s services or work product for the former client;

(2) if the representation in reasonable probability will involve a

violation of Rule 1.05 [governing confidential information and

barring attorney from revealing such information]; or

(3) if it is the same or a substantially related matter.

Tex. Disciplinary Rules Prof’l Conduct R. 1.09, reprinted in Tex. Gov’t Code, Tit. 2, subtit. G,

app. A. Representation against a former client is not allowed if there is a “reasonable

probability” that the representation would cause the lawyer to violate obligations owed to the

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former client related to the use or disclosure of confidential information or if the representation

involves the same or a substantially related matter. Id. cmt.

Meanwhile, Rule 1.12 governs representation of an organization: “A lawyer

employed or retained by an organization represents the entity.” Id. R. 1.12(a). The comments

explain that an attorney “employed or retained to represent an organization represents the

organization as distinct from its directors, officers, employees, members, shareholders or other

constituents.” Id. cmt. 1. Comment 4 to Rule 1.12 explains:

There are times when the organization’s interest may be or become adverse to

those of one or more of its constituents. In such circumstances the lawyers should

advise any constituent, whose interest the lawyer finds adverse to that of the

organization of the conflict or potential conflict of interest, that the lawyer cannot

represent such constituent, and that such person may wish to obtain independent

representation. Care should be taken to assure that the individual understands

that, when there is such adversity of interest, the lawyer for the organization

cannot provide legal representation for that constituent individual, and that

discussions between the lawyer for the organization and the individual may not be

privileged insofar as that individual is concerned. Whether such a warning should

be given by the lawyer for the organization to any constituent individual may turn

on the facts of each case.

Id. cmt. 4. And the comments addressing derivative actions by members of a corporation

seeking to compel directors to perform their legal obligations state:

The question can arise whether counsel for the organization may defend such an

action. The proposition that the organization is the lawyer’s client does not alone

resolve the issue. Most derivative actions are a normal incident of an

organization’s affairs, to be defended by the organization’s lawyer like any other

suit. However, if the claim involves serious charges of wrongdoing by those in

control of the organization, a conflict may arise between the lawyer’s duty to the

organization and the lawyer’s relationship with those managing or controlling its

affairs.

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Id. cmt. 10-11.

Finally, Rule 3.08, “Lawyer as Witness,” says that, subject to certain exceptions,

an attorney cannot act as an advocate in a proceeding if he “knows or believes” that he might be

a “witness necessary to establish an essential fact on behalf of the lawyer’s client.” Id.

R. 3.08(a).

DISCUSSION

With those rules and standards in mind, we now turn to the issues at hand.

Elusive asserts that the trial court abused its discretion by granting the motion to disqualify

Murphy without having required White to show evidence requiring the disqualification, by not

applying the proper “substantial relationship” standard, and by not stating the factors that

established such a relationship. We agree.

Our review is abuse of discretion, see Spears, 797 S.W.2d at 656 n.3, but as noted

above, White had the burden of showing “with specificity a violation of one or more of the

disciplinary rules,” see id. at 656. At the hearing, White’s attorney vaguely referenced the

conflict-of-interest rules when he stated that in this lawsuit, “essentially general counsel is

representing one of the two equal owners.” However, if seeking disqualification based on a

conflict of interest, White had to show a “substantial relation between the two representations”

see NCNB Tex. Nat’l Bank v. Coker, 765 S.W.2d 398, 399-400 (Tex. 1989); Chonody, 49

S.W.3d at 379-80 (movant must establish “the existence of a prior attorney-client relationship in

which the factual matters involved were so related to the facts in the pending litigation that it

involved a genuine threat that confidences revealed to his former counsel will be divulged to his

present adversary or used to his disadvantage”), or otherwise establish facts that could support

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disqualification based on a conflict of interest. White, however, did not refer to the disciplinary

rules or provide any evidence, much less raise the specter of a violation of the disciplinary rules.

White did not argue or present any evidence that Murphy’s representation of him in the real-

estate dispute might have given Murphy any relevant confidential information or that the matters

were in any way related. Nor is there a rule that general counsel for a company must be

disqualified if a dispute arises between the company and an officer, and in fact Rule 1.12

provides to the contrary. See Tex. Disciplinary Rules Prof’l Conduct R. 1.12.

If White was arguing a Rule 3.08 conflict, he had the burden of establishing the

likelihood of Murphy being a fact witness. See Spears, 797 S.W.2d at 656. “Mere allegations of

unethical conduct or evidence showing a remote possibility of a violation of the disciplinary

rules will not suffice,” id., and “[t]he fact that a lawyer serves as both an advocate and a witness

does not in itself compel disqualification,” In re Sanders, 153 S.W.3d 54, 57 (Tex. 2004).

“Disqualification is only appropriate if the lawyer’s testimony is ‘necessary to establish an

essential fact,’” Sanders, 153 S.W.3d at 57 (quoting Tex. Disciplinary R. Prof’l Conduct 3.08(a),

and thus “the party requesting disqualification must demonstrate that the opposing lawyer’s dual

roles as attorney and witness will cause the party actual prejudice,” id.

In his response to Elusive’s petition for mandamus relief, White argues that

Murphy could conceivably be a fact witness due to his work as Elusive’s general counsel and his

interactions with White in that capacity. White also speculates that the court “could have

determined that [Murphy] is a key witness in the dispute between White and Blackburn who

should be disqualified under” Rule 3.08 and that Murphy “has intimate knowledge of Elusive’s

operations, dealings between the two owners, circumstances of the ousting, and what Elusive’s

property and ‘confidential information’ that Blackburn alleges White stole and used for his own

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purposes may include.” However, as Elusive points out, this lawsuit is between Elusive and

White—it is not a lawsuit between the two partners. Further, and more importantly, it was

White’s burden to establish such facts in the trial court, but he did not raise the possibility that

Murphy might be a fact witness and never asserted, much less established, that Murphy would be

called to testify about information he had learned during White’s time as an Elusive executive.

See In re Lavizadeh, 353 S.W.3d 903, 904 (Tex. App.—2011 Dallas, orig. proceeding) (“The

trial court, having been presented no evidence of the necessity of [attorney] Turner’s testimony,

could not have reasonably concluded that Turner’s testimony was necessary to establish an

essential fact of the other relators’ case.”).

White also asserts that the trial court “was in a much better position than this

Court to evaluate the evidence, balance the competing interests, apply the law, and reach a

decision to disqualify Attorney Murphy.” However, the supreme court has explained that a trial

court should state “the precise factors” weighing in favor of disqualification. See Coker, 765

S.W.2d at 400. The Coker court held that when a party seeks to disqualify his former attorney

from representing his opponent, the party must prove that his prior attorney-client relationship

involved facts so related to the present case as to create a genuine threat that privileged

confidences will be divulged, explaining, “Sustaining this burden requires evidence of specific

similarities capable of being recited in the disqualification order.” Id. (emphasis added). The

trial court’s order in Coker recited that the court “finds the subject matter involved in both

representations are similar enough for there to be an appearance that the attorney-client

confidences which could have been disclosed by the defendant might be relevant to the law

firm’s representation of the plaintiff in this suit.” Id. The supreme court determined that the

order was inadequate:

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The vagueness of the court’s order indicates that the substantial relation 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. To hold that the two representations were “similar enough” to

give an “appearance” that confidences which could be disclosed “might be

relevant” to the representations falls short of the requisites of the established

substantial relation standard.

Id.

The order in this case provides no explanation, stating only that the motion was

granted. Further, in explaining its ruling, the trial court stated that Elusive would not be

prejudiced by having to retain new counsel, that it was “easy to slip into an atty-client privileged

relationship with someone,” and that attorneys should avoid an appearance of impropriety, but it

did not indicate that it had considered White’s burden under Coker and Spears.

CONCLUSION

White notes that his motion to disqualify was filed and ruled on soon after the

lawsuit was filed and that Elusive has since hired a new attorney, as ordered by the trial court,

asserting that Elusive is thus not prejudiced by the trial court’s order. However, “[m]andamus is

appropriate to correct an erroneous order disqualifying counsel because there is no adequate

remedy by appeal.” Sanders, 153 S.W.3d at 56; see In re EPIC Holdings, Inc., 985 S.W.2d 41,

54 (Tex. 1998) (appeal of ruling on attorney disqualification does not adequately remedy injury

suffered by party).

On this record, White did not carry his burden of showing a violation of the Rules

so as to meet the Coker/Spears requirements. The trial court thus abused its discretion in

granting the motion to disqualify. We conditionally grant the writ of mandamus and order the

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trial court to vacate its order disqualifying Murphy as Elusive’s attorney. The writ will issue

only if the trial court does not comply.

__________________________________________

Jeff Rose, Chief Justice

Before Chief Justice Rose, Justices Baker and Triana

Filed: April 15, 2020

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