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Petition for Writ of Mandamus Conditionally
Granted and Memorandum Opinion filed March 5, 2009.

In The

Fourteenth
Court of Appeals

____________

NO. 14-08-01017-CV

____________

IN RE MICHELLE E. MURPHY,
Relator

ORIGINAL
PROCEEDING

WRIT OF
MANDAMUS

M E M O R
A N D U M   O P I N I O N

In this original proceeding, relator, Michelle E. Murphy, seeks a writ of mandamus ordering
the respondent, the Honorable Gladys Burwell, presiding judge of the
Probate Court of Galveston County, to vacate her October 6, 2008 order
disqualifying relator as counsel.  We conditionally grant the
writ.

I.
Underlying Facts and Procedural History

The underlying litigation
involves a dispute over the administration of the estate of James
Morelock.  Relator Michelle E. Murphy is the decedent=s daughter, and real party in
interest, Kari Strain Morelock, is his surviving spouse.  On August
8, 2007, Murphy filed an application to serve as administrator of the
decedent=s estate.  On August 27,
2007, Morelock filed an application to probate the decedent=s will.  On January 24,
2008, Morelock non-suited her application to probate the will, and, on
April 4, 2008 filed a competing application to serve as administrator of
the decedent=s estate.  The underlying
action in this case is the dispute between Murphy and Morelock as to who
should be appointed administrator of the decedent=s estate.

On June 4, 2008, Morelock filed
a motion to disqualify Murphy as counsel on the grounds that (1) Murphy
had previously represented Morelock and the decedent in the preparation of
a survivorship agreement and (2) local rules and Texas case law prohibit
an individual acting pro se to administer an estate.  Murphy
responded to Morelock=s motion alleging (1) Morelock
waived disqualification because she delayed in filing the motion until ten
months after Murphy filed her application to be appointed as
administrator, (2) Murphy did not represent Morelock in the preparation of
the survivorship agreement, (3) no confidential information was disclosed
in preparation of the agreement, and (4) the local rule does not apply to
Murphy.

The respondent held a hearing
on Morelock=s motion and found that
Morelock did not waive her objection and that Murphy was disqualified as
counsel both as a result of her previous representation of Morelock and
because she is seeking letters of administration.  At the hearing,
both parties testified about a survivorship agreement that Murphy prepared
prior to the decedent=s death.  Morelock
testified that she and the decedent had not executed wills and were
concerned about property division following one or the other=s death.  Murphy suggested
that they enter into a survivorship agreement, which would address to whom
the property would pass upon the death of either spouse.  Morelock
testified that she divulged confidential financial information to Murphy
to facilitate Murphy=s preparation of the
agreement.  Morelock, the decedent, and Murphy were present when the
agreement was signed, and Murphy represented both parties to the
agreement.  Morelock further testified that Murphy=s earlier representation of her
was so related to the administration of the estate that there was a
genuine threat that the confidences she revealed would be
disclosed.

Murphy contradicted
Morelock=s testimony, stating that in
preparing the survivorship agreement, she represented only her father, the
decedent.  She disputed that Morelock divulged confidential
information, testifying that all of the information used in preparation of
the agreement was public record.  Although the agreement affected
both parties, she prepared it at the request of the decedent.  She
obtained the information to prepare the agreement by searching county
records.

With regard to the issue of
waiver, Morelock testified that the conflict did not arise until she filed
for letters of administration on April 4, 2008.  She further
testified that she was not aware of her right to file a motion to
disqualify counsel until she retained her current counsel approximately
four weeks before the motion was filed.

On October 6, 2008, the
respondent issued an order granting the motion to disqualify finding that
Murphy Apreviously represented Kari
Strain Morelock in a matter substantially related to the proceedings at
bar.@  The respondent further
held that Murphy Ais disqualified from serving as
counsel for herself in the capacity of applicant as
administrator.@  Murphy filed this
mandamus proceeding challenging the trial court=s order of
disqualification.

II.
Standard of Review

Mandamus is an extraordinary
remedy to correct a trial court=s abuse of discretion that
cannot be remedied through standard appellate channels.  Walker v.
Packer, 827 S.W.2d 833, 840B44 (Tex. 1992) (orig.
proceeding).  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.CHouston [14th Dist.] 1999,
orig. proceeding).  Because disqualification is a severe remedy, the
courts must adhere to an exacting standard so as to discourage the use of
a motion to disqualify as a dilatory trial tactic.  Spears v.
Fourth Court of Appeals, 797 S.W.2d 654, 656 (Tex. 1990) (orig.
proceeding).  The burden is on the movant to establish with
specificity a violation of one or more of the disciplinary rules.
See id.  Mere allegations of unethical conduct or evidence
showing a remote possibility of a violation of the disciplinary rules will
not suffice under this standard.  Id.

To show an abuse of discretion
with respect to factual issues, the party requesting mandamus relief must
establish that the trial court could have reached but one decision, given
the facts existing and law applicable to the case.  Johnson v.
Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig.
proceeding).  The trial court=s decision may be disturbed by
mandamus only if it is shown to be arbitrary or unreasonable.
Walker, 827 S.W.2d at 839; Butler, 987 S.W.2d at
226.

Murphy challenges the
respondent=s order on the following
grounds: (1) Morelock waived her right to disqualify counsel by waiting
too long to file her motion, (2) the trial court=s order does not recite
evidence of specific similarities between the administration of the estate
and preparation of the survivorship agreement, (3) there is no conflict of
interest because relator did not represent Morelock in preparing of the
survivorship agreement, and (4) the Galveston County local policy does not
apply in this instance.

III.
Waiver

Murphy contends that Morelock
waived her complaint about a conflict of interest by waiting over nine
months to object to Murphy representing herself as the administrator of
the estate.  Waiver of a motion to disqualify is determined by the
filing of the motion.  A party who does not file a motion to
disqualify opposing counsel in a timely manner waives the complaint.
Vaughan v. Walther, 875 S.W.2d 690 (Tex. 1994) (orig.
proceeding).  In determining whether a party has waived the
complaint, the court will consider the length of time between when the
conflict became apparent to the aggrieved party and when the aggrieved
party filed the motion to disqualify.  See Wasserman v. Black,
910 S.W.2d 564, 568 (Tex. App.CWaco 1995, orig.
proceeding).  The court should also consider any other evidence which
indicates the motion is being filed not due to a concern that confidences
related in an attorney‑client relationship may be divulged but as a
dilatory trial tactic.  Spears, 797 S.W.2d at 656.

Morelock filed her motion to
disqualify counsel on June 4, 2008.  Murphy contends that the
conflict became apparent to Morelock on August 8, 2007 when Murphy filed
for letters of administration.  Morelock testified that she did not
file a completing claim for administration until April 4, 2008.

The trial court heard evidence
from both parties and determined that Morelock did not waive her right to
file the motion.  The trial court=s implied finding of no waiver
is supported by Morelock=s testimony that the conflict
did not become apparent until she filed a competing claim for letters of
administration.  Factual determinations by the trial court may not be
disturbed by mandamus review if those determinations are supported by
sufficient evidence.  See Mendoza v. Eighth Court of Appeals,
917 S.W.2d 787, 790 (Tex. 1996) (orig. proceeding).  After reviewing
the record, we conclude the trial court=s finding is supported by
sufficient evidence.  The trial court did not abuse its discretion in
finding that Morelock did not waive her right to seek
disqualification.  Her motion was filed in June, just two months
after she filed her competing letters of administration.

IV.
Conflict of Interest

Murphy further argues that the
trial court abused its discretion in finding a conflict of interest
because (1) she did not represent Morelock in preparation of the
survivorship agreement and (2) even if a prior attorney-client
relationship existed, the two matters are not substantially related so as
to require disqualification of counsel.

The Texas Rules of Professional
Conduct provide guidance in determining whether an attorney should be
disqualified from representing a party in litigation.  See
Henderson v. Floyd, 891 S.W.2d 252, 253 (Tex. 1995) (orig.
proceeding).  Rule 1.09 of the Texas Disciplinary Rules of
Professional Conduct is the applicable rule and provides in
part:

(a) Without prior consent, a lawyer who personally
has formally represented a client in a matter shall not thereafter
represent another person in a matter adverse to the former
client:

* * *

(2) if the representation in reasonable
probability will involve a violation of Rule 1.05; or

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

Tex. Disciplinary R. Prof=l Conduct 1.09, reprinted in Tex. Gov=t Code Ann., tit. 2, subtit. G app. A (Vernon
Supp. 2008) (Tex. State Bar R. art. X, ' 9).

Rule 1.05, referenced in Rule
1.09(a)(2), addresses a lawyer=s duties with respect to a
client=s confidential
information.  Rule 1.05(b), provides:

(b) [A] lawyer shall not knowingly:

(1) Reveal confidential information of a client or
a former client[.]

* * *

(3) Use confidential information of a former
client to the disadvantage of the former client after the representation
is concluded unless the former client consents after consultation or the
confidential information has become generally known.

Tex. Disciplinary R. Prof=l Conduct 1.05, reprinted in Tex. Gov=t Code Ann., tit. 2, subtit. G app. A (Vernon
Supp. 2008) (Tex. State Bar R. art. X, ' 9).

Rule 1.09(a)(2) incorporates
Rule 1.05, which prohibits a lawyer=s use of confidential
information obtained from a former client to that former
client=s disadvantage.  Rule
1.09, thus forbids a lawyer to appear against a former client if the
current representation in reasonable probability will involve the use of
confidential information or if the current matter is substantially related
to the matters in which the lawyer has represented the former
client.  In re Hoar Construction, 256 S.W.3d 790, 800 (Tex.
App.CHouston [14th Dist.] 2008,
orig. proceeding).

The party moving to disqualify
an attorney must prove: (1) the existence of a prior attorney‑client
relationship, (2) in which the factual matters involved were so related to
the facts in the pending litigation, (3) that it involved a genuine threat
that confidences revealed to his former counsel will be divulged to his
present adversary.  See NCNB Tex. Nat=l Bank v. Coker, 765 S.W.2d 398, 400 (Tex.
1989) (orig. proceeding).

Although the court heard
evidence on whether the information given to Murphy was confidential, the
court made a finding only as to whether the matters were substantially
similar.  The trial court found that Murphy Apreviously represented Kari
Strain Morelock in a matter substantially related to the proceedings at
bar.@  Murphy argues that the
link between the preparation of the community property survivorship
agreement and the facts and issues in the administration of the estate do
not meet the Asubstantially
related@ standard.  In making this
argument, she primarily relies on her arguments that no confidential
information was disclosed in preparation of the survivorship
agreement.  However, the client=s privilege in confidential
information disclosed to her attorney is not nullified by the fact that
the circumstances to be disclosed are part of a public record, or that
there are other available sources for such information.  In re
American Airlines, Inc., 972 F.2d 605, 614 (5th Cir. 1992), citing
Emle Industries, Inc. v. Patentex, Inc., 478 F.2d 562, 572B73 (2d Cir. 1983).
AThis ethical precept exists
without regard to the nature or source of information or the fact that
others share the knowledge.@
Brennan=s, Inc. v.
Brennan=s Rests., Inc., 590 F.2d 168, 172 (5th Cir.
1979).

In any event, in this case, the
trial court found the existence of a Asubstantial
relationship@ between the previous
representation and the current proceedings.  If the movant proves the
existence of a substantial relationship, there is a conclusive presumption
that confidences were imparted to the former attorney.  Coker,
765 S.W.2d at 400.  Morelock maintains that the subject of the
underlying litigation, i.e., whether there is a need for administration of
the decedent=s estate, is substantially
similar to the preparation of the survivorship agreement because both
actions Arelate[] to assets of the
Decedent and Mrs. Morelock=s estate[.]@

The severity of
disqualification of counsel requires the movant to produce evidence of
specific similarities capable of being recited in the disqualification
order.  Id.  A substantial relationship may be found only
after Athe moving party delineates
with specificity the subject matter, issues and causes of
action@ common to prior and current
representations and the court engages in a Apainstaking analysis of the
facts and precise application of precedent.@  American
Airlines, 972 F.2d at 614.  Morelock failed to meet this burden
by failing to show evidence of specific similarities capable of being
recited in the disqualification order.

Furthermore, the trial
court=s order fails to recite
evidence of specific similarities as required by the supreme court in
Coker.  In Coker, the court held that A[t]he 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.@  Coker, 765 S.W.2d
at 400.  The order in this case is vague and does not, on its face,
state the precise factors establishing a substantial relationship between
the two representations.

This court has previously held
that even if the order is vague, if it is apparent from the record that
the trial court applied the proper test, a failure to comply with
Coker is not an abuse of discretion.  In re Butler, 987
S.W.2d at 227.  In this case, it is not apparent from the record that
the trial court applied the proper test.

The trial court=s order does not sufficiently
recite the factors the court considered in determining the two proceedings
were substantially similar.  The court=s order merely states that the
proceedings are Asubstantially
similar.@  Further, the record does
not reveal how the proceedings are related.  If the court had
properly applied the substantial relationship test, it should have been
able to recite in the order the precise factors establishing a substantial
relationship between the two representations.  Because the court
failed to do so, it abused its discretion in granting the motion to
disqualify.  See Coker, 765 S.W.2d at 400.

V.
Local Policy

Finally, Murphy argues that the
trial court abused its discretion because the local policy relied on by
the court does not apply in this instance.  In finding that Murphy
could not represent herself in seeking letters of administration, the
trial court relied in part on a local policy.

The policy states:

A pro se is an individual who has not
retained an attorney and appears in court to represent himself and no
other person or entity.

Under Texas law, individuals applying for letters
testamentary, letters of administration, determinations of heirship, and
guardianships of the person or estate must be represented by a licensed
attorney.  This rule follows from the requirement that only a
licensed attorney may represent the interests of third-party individuals
or entities and follows case law that fiduciaries must be represented by
an attorney.

The only proceedings that you can handle as a
pro se are those in which you truly would be representing
only yourself.  For example, a pro se may apply to
probate a will as a muniment of title when he or she is the sole
beneficiary under the will and there are no debts against the estate other
than those secured by liens against real estate.  Whether a
muniment of title is the correct probate procedure for a particular
situation is a legal decision that is best made by an attorney.
Note that anyone falsely swearing that the estate has no creditors,
including Medicaid estate recovery, is subject to a perjury
charge.

Although the Clerk will accept documents for
filing by pro se applicants, the Court will take no action on the
documents unless there is an attorney of record in that case.

Probate Court of Galveston County, Texas
Administrative Order 2007-02. (emphasis in original)

The policy states on its face
that it is based on the requirement that only a licensed attorney can
represent the interests of a third party.  Murphy is a licensed
attorney approved to represent the interests of others; therefore, we
agree with Murphy that the local policy of prohibiting pro se
administration of estates does not apply to her.  Therefore, the
trial court abused its discretion in disqualifying counsel based on the
local policy of the Galveston County Probate Court.

VI.
Conclusion

We conditionally grant the
petition for a writ of mandamus and direct the trial court to vacate its
October 6, 2008 order disqualifying relator as counsel.  We are
confident that the respondent will comply.  The writ will issue only
if the trial court fails to act in accordance with this opinion.  The
stay issued by this court on November 6, 2008 is lifted.

/s/
Leslie B. Yates

Justice

Panel consists of Justices
Yates, Seymore, and
Boyce.