The San Antonio Court of Appeals recently disqualified former court of appeals Justice Sarah Duncan and her law firm–Locke Lord Bissell & Liddell LLP–from representing a Relator in an original proceeding pending before that court of appeals.
According to the facts in In re Brittingham, when she served on the Fourth Court of Appeals, Justice Duncan participated in two separate appeals taken from the underlying probate proceeding. After she left the bench, she made an appearance as counsel in an original proceeding filed in the Fourth Court of Appeals and relating to the same probate proceeding. The Real Party in Interest, Kevin Mackie, moved to disqualify Justice Duncan and her law firm.
The court of appeals grants the motion to disqualify and addresses several interesting issues. First, the court discussed what is a "matter" under Texas Disciplinary Rule of Professional Conduct 1.11, and it rejected a narrow interpretation that would have treated an original proceeding as a separate matter from the underlying proceeding or from prior appeals taken from the same underlying proceeding. Next, the court discusses what disclosure is required in order for the opposing party to consent to the conflict, and the court holds that the mere listing of Justice Duncan on a brief in the original proceeding is not disclosure of the conflict. Third, the court concluded that the Real Party in Interest was not required to show prejudice (how could he since judicial discussions occur behind closed doors?). Finally, the court holds that the disqualification of Justice Duncan required disqualification of the law firm under Rule 1.11(c). The court’s opinion may be found here.