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Civil Litigation No. 05-01-01244-CV, 5/23/2003. Click here for the full text of this decision FACTS: After a jury trial, the trial court entered an Amended Final Decree of Divorce between Rupert Pollard and Marie Merkel on May 7, 2001. According to the Dallas court’s opinion, Merkel and Pollard were married on Sept. 4, 1964. Merkel filed for divorce on Feb. 25, 1992. For approximately two years after the case was filed, Pollard was represented by Charles H. Robertson and Robert E. Holmes Jr. of the firm Robertson & Holmes. In March 1994, Pollard discharged the firm of Robertson & Holmes as his attorneys in the divorce action. In June 1994, Sally Bybee joined Robertson & Holmes as an associate. Holmes left Holmes & Robertson on May 31, 1995. In 1996, Pollard sued Robertson, Holmes, and the firm alleging professional malpractice relating to their handling of the divorce proceeding. Bybee left Robertson & Holmes’ employ in December 1997. Both the divorce and the malpractice action were still pending after that date. On June 5, 2000, Merkel filed a motion for substitution of counsel, requesting the court to permit Bybee, then with Glast, Phillips & Murray, to substitute as her counsel of record in the divorce case. Pollard filed his opposition the following day, arguing that Bybee’s employment by Robertson & Holmes should preclude her from representing Merkel. The trial judge held a hearing on June 6, 2000, and apparently granted the motion for substitution, as Bybee continued as counsel of record for Merkel. The divorce case proceeded to trial. In her opening statement on behalf of Merkel, Bybee argued she would establish Pollard’s lack of truthfulness through the testimony of his former lawyer, Holmes, the Dallas court wrote. After this argument, Pollard moved to exclude any testimony from Holmes and a legal assistant. Out of the presence of the jury, the trial judge heard testimony from Holmes and others, and ruled that neither Holmes nor the legal assistant would be permitted to testify. Pollard further asserted a motion for mistrial, and renewed his motion to disqualify Bybee as counsel. The trial court denied these motions. HOLDING: Reversed and remanded. There is no dispute that an attorney-client relationship was established between the Robertson & Holmes firm and Pollard. Robertson & Holmes represented Pollard in the divorce proceedings for approximately two years. Subsection (a) of Texas Rule of Disciplinary Procedure 1.09(a) applies to an attorney who “personally has formerly represented a client in a matter.” Rule 1.09(a)(2) would prohibit Robertson or Holmes from representing Merkel in the same divorce proceeding, as the representation “in reasonable probability” would involve a violation of Rule 1.05. “The preservation of clients’ secrets and confidences is not an option.” Coker, 765 S.W.2d at 399. Almost any confidence shared by Pollard about his assets, the marital relationship, or any other matter relevant to the divorce would be at risk of disclosure to Merkel to the detriment of Pollard. While the question whether such a reasonable probability exists in any given case is a question of fact, only one factual determination could be made here: that switching sides in the same lawsuit would involve use of “confidential information of a former client to the disadvantage of the former client after the representation is concluded” in violation of Rule 1.05(b)(3). Thus, neither Robertson nor Holmes could represent Merkel in this case without Pollard’s prior consent. Merkel contends that Bybee did not “personally represent” Pollard, as she was not hired by Robertson & Holmes until after Pollard fired the firm. However, for as long as Bybee remained at the Robertson & Holmes firm, she too was prohibited from representing Merkel against Pollard in the same case in which Robertson & Holmes represented Pollard. Under subsection (b) of Rule 1.09, because neither Robertson nor Holmes “practicing alone” could represent Merkel against Pollard in the divorce, Bybee could not do so as long as she was associated with the firm. Moreover, the knowledge of Robertson and Holmes of Pollard’s confidences was imputed to every Robertson & Holmes attorney: There is, in effect, an irrebuttable presumption that an attorney in a law firm has access to the confidences of the clients and former clients of other attorneys in the firm. One reason for this presumption is that it would always be virtually impossible for a former client to prove that attorneys in the same firm had not shared confidences. National Medical Enterprises Inc. v. Godbey, 924 S.W.2d 123 (Tex. 1996). Thus, there is an irrebuttable presumption that Bybee had access to Pollard’s confidences. Moreover, the rules protect a broad range of information as client confidences: Moreover, virtually any information relating to a case should be considered confidential: the Disciplinary Rules define “confidential information” to encompass even unprivileged client information. Phoenix Founders Inc. v. Marshall, 887 S.W.2d 831 (Tex. 1994). Holmes’ departure from the firm did not lift this prohibition. Under subsection (c) of Rule 1.09, attorneys who were associated with Holmes could not undertake a representation from which Holmes himself was prohibited “if the representation in reasonable probability will involve a violation of Rule 1.05.” Rule 1.05 protects the confidences of a client even after the attorney/client relationship has been terminated. Comment 8 to Rule 1.05 provides in part, “The duty not to misuse client information continues after the client-lawyer relationship has terminated. . . .” Lawyers associated with a firm are presumed to know the confidences of the firm’s clients. Those remaining at the Robertson & Holmes firm after Holmes’ departure were presumed to know Pollard’s confidences; representation of Merkel against Pollard in the same divorce proceeding would “in reasonable probability” involve disclosures of those confidences to Merkel. “Some examples of ‘reasonable probability’ are: 1. ‘an unauthorized disclosure of confidential information’ obtained from a client or former client or 2. the inappropriate use of confidential information to the detriment of a former client.” In Re: Roseland Oil & Gas Inc., 68 S.W.3d 784 (Tex. App. – Eastland 2001, orig. proceeding). Moreover, there is no evidence Robertson did not remain with the firm when Holmes departed; therefore, subsection (b) of Rule 1.09 would continue to prevent any Robertson & Holmes lawyer from representing Merkel in the divorce. Once Bybee left the firm, however, Merkel argues Rule 1.09′s restrictions no longer apply. Comment 7 to Rule 1.09 provides: “Finally, should those other lawyers cease to be members of the same firm as the lawyer affected by paragraph (a) without personally coming within its restrictions, they thereafter may undertake the representation against the lawyer’s former client unless prevented from doing so by some other of these Rules.” Thus, without more, Bybee’s departure from the Robertson & Holmes firm would free her from Rule 1.09′s restrictions as to the representation of Merkel. The trial judge erred in applying Comment 7 where a violation of Rule 1.05 occurred. Bybee, the departing lawyer, used confidential information to the detriment of Pollard, the firm’s former client, in the very same case in which the information was originally imparted. Comment 7 should not be interpreted to suddenly permit the use of confidential information to the disadvantage of a former client in violation of Rule 1.05(b)(3). In the course of the trial, Bybee attempted to use against Pollard confidential information Robertson & Holmes had obtained from Pollard during their representation of him. Her opening argument included a promise to offer Pollard’s former lawyer’s testimony to establish Pollard’s lack of truthfulness. At the hearing to exclude this testimony, Bybee argued she planned to question Holmes about matters on which he had already testified in a deposition in the malpractice case. In the malpractice case, Holmes could ethically disclose Pollard’s confidences to defend himself against Pollard’s accusations. This exception is limited, however; disclosure may be only “to the extent reasonably necessary to enforce a claim or establish a defense on behalf of the lawyer,” and only “in a controversy between the lawyer and the client.” Rule 1.05(c)(6). The trial judge heard testimony from Bybee and Holmes relevant to the disqualification motions. Bybee testified she never discussed either the divorce or the malpractice case with anyone while employed at Robertson & Holmes; further, she had never discussed the matter with Holmes after both of them had left the firm. Pollard offered no evidence to the contrary; the trial judge apparently believed this testimony. Assuming the truth of Bybee’s testimony, however, Bybee clearly knew of, and used, the confidential information Holmes undisputedly possessed to Pollard’s detriment at the trial. This use violated Rule 1.05(b)(3). Under Rule 1.09, therefore, Bybee should have been disqualified. While the trial judge minimized the harm to Pollard by excluding Holmes’ testimony, her ruling did not abrogate the violation of Rule 1.05. By the second hearing, a violation of Rule 1.05 had occurred: Bybee argued to the jury, using Pollard’s confidential information imparted to Holmes during the same case, that she would prove Pollard did not tell the truth. Where knowledge of a client’s confidences has been only imputed to an attorney, that attorney’s departure from a firm will normally remove the imputation of knowledge, and the attorney is free to undertake representation adverse to that client. Where the departing attorney seeks that former client’s confidential information from her former law partner and uses it to the former client’s detriment when representing the opposing party in the very same case, however, disqualification is required. OPINION: Bridges, J.; Bridges, FitzGerald and Richter, JJ.

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