Opinions, August 25, 2016: You Can’t Represent the Husband AND the Wife in Divorce

Today the Fourteenth Court of Appeals released one published opinion, In re L.T.H., Cause No. 14-15-00366-CV, and one memorandum opinion in a mandamus proceeding, In re Quintanilla, Cause No. 14-16-00473-CV.

First, the memorandum opinion because it is amusing. On November 8, 2015, Relator Jose Quintanilla retained attorney Michael G. Busby Jr. of Busby & Associates, P.C. to represent him in his divorce. Three days later, Jose’s wife Silva Garcia hired Busby. Busby eventually returned Silva’s retainer and declined to represent her because he already represented Jose.

Busby filed an original petition for divorce on behalf of Jose. Silva answered and filed a motion to disqualify Busby. The associate judge granted the motion, as did the presiding judge after a de novo hearing.  Busby filed a mandamus on June 14, 2016.

Evidence was presented at the disqualification hearing that Silva had met with a legal assistant in Busby’s office, filled out an “extensive” application, and provided documents regarding the marital estate. Busby never personally met Silva. Silva paid a $2,500 retainer and the legal assistant informed her the firm would start to work on the case in 2-3 days. Silva signed an employment agreement, but no attorney in Busby’s office signed it.

A few days later the firm discovered the conflict and informed Silva her retainer would be returned to her because of the conflict. Her documents were not returned to her and she was informed that her personal information had been destroyed. Silva testified that she had no way of knowing if her personal information had actually been destroyed. Busby asserted he did not have the documents she claims created a conflict.

Busby argued at the hearing that Silva had not retained his firm because no one in the firm signed the contract. The Court of Appeals held that the trial court had sufficient evidence to support a finding of an intention to create an attorney-client relationship (Silva paid the $2,500 retainer, she was told the case would start working on her case).

Busby also argued there was no genuine threat that Busby could divulge confidential information he may have obtained in his brief representation of Silva. In support of this, Busby submitted affidavits from attorneys, paralegals, and legal assistants at his firm, all testifying that they had no access to any of Silva’s confidential information. He also argued that Silva had not given him confidential information. The Court of Appeals held that there is a “conclusive presumption” that the existence of an attorney-client relationship establishes as a matter of law that confidences were imparted to the attorney. The trial court did not abuse its discretion in settling this fact issue (whether Silva gave Busby’s firm confidential information) in Silva’s favor. Silva met her burden to disqualify Busby from the case.

Busby also argued the trial court abused its discretion in not considering alternatives to disqualification such as questioning Silva about the alleged information she provided to the firm or inspecting the firm’s files. But an attorney’s former client is not required to disclose confidential communications with former counsel to show actual prejudice to support disqualification. Because Silva met her burden, the trial court did not have to consider alternatives to disqualification.

Finally, Busby made a laches argument, contending Silva waived her complaint by not moving to disqualify his firm for five months after discovering the conflict. But Silva testified that she didn’t know the divorce had been filed until March 2016 because of service issues and she filed her motion to disqualify on April 29. As this was only a four-week difference and still in the beginning stages of the case, the Court of Appeals overruled the issue.

The petition for writ of mandamus was denied.

The published opinion released by the Fourteenth, In re L.T.H., concerns ambiguities in a mediated settlement agreement in a modification case. The Court of Appeals held those ambiguities should have been submitted to the mediator/arbitrator per the MSA.

In June 2014, the father filed a petition to modify , seeking to expand his possession. The trial court signed temporary orders which expanded his possession rights.

The trial court referred the parties to mediation. On February 6, 2015, they signed an MSA which included possession provisions. The MSA also provided that the parties would submit drafting disputes, interpretation issues, and issues regarding the parties’ intent to binding arbitration with the mediator.

On February 27, in a hearing not attended by the mother, the trial court orally granted the relief agreed to in the MSA. Less than a month later, the trial court held another hearing to address a dispute concerning the language of the proposed order on the MSA drafted by the father’s attorney. The mother argued the proposed order was contrary to their agreement but the trial court disagreed. On March 20, 2015, the trial court signed an Agreed Order based on the MSA.

In her sole issue on appeal, the mother contended the trial court abused its discretion by granting judgment on an order inconsistent with the MSA. Specifically, she argued the trial court’s final order substantially differed from the MSA because it awarded the father additional time with the child that he did not have under the temporary orders and changed the pick-up and return times, to the father’s advantage.

The Court of Appeals detailed the dispute concerning interpretations, but the bottom line is that, under the MSA, these disputes concerning interpretation and intent were to be submitted to the mediator/arbitrator, not the trial court. As such, the trial court erred in resolving the dispute at all. The Court of Appeals ordered the trial court to reverse the relevant provisions of the agreed order and remanded the case for further proceedings.

 

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