In Re: Basco

Even if departing attorneys have no connection with a former client of a former firm, they cannot take on a case against that client if it involves questioning the validity of the earlier representation.

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Click here for the full text of this decision FACTS:Dr. Michael Angelo Basco sued Baylor Medical Center at Grapevine for terminating his hospital privileges. He alleged that termination occurred a few days after he reported negligence by the hospital’s nurses in delivery of a child and that Baylor sought to discredit him in the malpractice case that resulted from that delivery. Baylor gave two reasons for terminating Basco’s privileges. The first was inappropriate administration of Cytotec to induce labor. Basco alleged that no records showed he prescribed Cytotec for patients, a fired employee was the sole basis for this allegation, and the Texas Board of Medical Examiners and a panel of the Texas Medical Association cleared him of this allegation. Baylor’s second reason for termination was Basco’s failure to report a suit against him by Mary Powell for injuries incurred in the delivery of her son. Basco admits he did not report the Powell suit to Baylor until it settled but did so on the advice of his attorney Winston Borum. Upon settlement, Borum sent a letter to Baylor stating that although he was “very confident of a defense verdict at trial,” he recommended that Basco settle for the “nuisance amount of $25,000.” During the four years the case was pending, one of Borum’s law partners was James Stewart, Baylor’s current counsel, who left Borum’s firm for Baylor three months after the case settled. Stewart testified he did not work on the case and did not recall ever discussing it. But he admitted calling Borum to talk about Powell once Baylor retained him, though he could not recall what they discussed. Basco filed a motion to disqualify Stewart as attorney for Baylor, which the trial court denied. Basco filed a petition for a writ of mandamus with the Texas Supreme Court. HOLDING:The court granted the writ of mandamus. Texas Disciplinary Rule of Professional Conduct 1.09(a) prohibits an attorney from representing a current client against a former client if the matter questions the validity of the earlier representation, involves a reasonable probability that confidences will be violated or is substantially related to the earlier representation. Under Rule 1.09(b), attorneys in a disqualified lawyer’s current firm are also disqualified in all three of these instances, the court stated, while attorneys in a prior firm are disqualified only in the first two. Thus, the court stated, even if departing attorneys have no connection with a former client of a former firm, they cannot take on a case against that client if it involves questioning the validity of the earlier representation. In this case, the court stated, “Dr. Basco alleges Borum advised him not to report the Powell suit to Baylor until it was concluded. As Dr. Basco seeks affirmative relief in his suit against Baylor, he cannot use advice of counsel as a sword while shielding what that advice really was. . . . Thus, in Baylor’s defense Stewart must question his former law partner about advice given Dr. Basco while the two were law partners. If Borum admits giving such advice, Baylor must certainly challenge the validity of it. “But even if Borum denies giving such advice, he cannot deny advising that the Powell case was an unmeritorious claim. Because a jury might conclude that overlooking a minor claim was not a firing offense, Baylor must likely challenge the validity of that advice too. Given the possible problems with Baylor’s other ground for termination, an attorney could not vigorously defend Baylor without challenging the opinion that failing to report the Powell case was not a big deal.” Accordingly, the court conditionally granted the writ of mandamus and directed the trial court to disqualify Stewart and his current firm. OPINION:Per curiam.

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