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In re Liebbe

Court of Appeals of Texas, Twelfth District, Tyler

March 29, 2019



          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.


          Brian Hoyle Justice

         Relator, Donna Liebbe, filed this original proceeding in which she seeks an order requiring Respondent to vacate his order disqualifying Bill Liebbe from representing Donna and sign an order denying the motion to disqualify filed by the Real Party in Interest, Richard D. Whomble.[1]We deny the writ.


         In August 2018, Richard filed an application seeking to be appointed as the permanent guardian of the person and estate of Susan Whomble, who suffers from Alzheimer's disease and dementia. Richard alleged that he is the "husband of the Proposed Ward," and that he and Susan divorced in 2011 for financial reasons, but never separated and continued living together as husband and wife. Richard stated that he has been Susan's caregiver for several years. He further stated that, at a time when Susan lacked capacity, Donna obtained a power of attorney over Susan in July 2018, but is no longer acting under that power of attorney.

         Donna, Susan's friend, filed a contest to Richard's application and an application to be appointed as Susan's permanent guardian. She alleged that Susan granted her a medical power of attorney in September 2016, a durable general power of attorney in July 2018, and told Donna that she preferred that Donna be appointed guardian. She further alleged that Richard is not Susan's husband, Richard stated that he was not married to Susan in previous legal proceedings, and Susan publicly told several people on multiple occasions that she was not married to Richard. Donna maintained that Richard (1) took control of and mismanaged Susan's resources, (2) allowed Susan to drive and drink alcohol and isolated and secluded Susan from social activities, all against her neurologist's advice, (3) failed to assure that Susan takes her medications as prescribed, (4) used Susan's resources for his monetary and personal benefit without Susan's informed consent, and (5) gave Susan Ativan to chemically restrain her when she became agitated and attempted to escape from Richard. Bill, Donna's husband, signed the contest and application as her attorney.

         On November 30, 2018, Richard filed a motion to disqualify Bill as Donna's counsel. He stated that Bill served as his counsel between 2014 and 2018 on two personal injury cases and Bill obtained confidential information during those proceedings, which he used to Richard's disadvantage in the guardianship proceeding. He further stated that Bill's legal assistant notarized the durable general power of attorney that Susan signed at Bill's office on July 10, 2018. Because Richard maintained that Susan lacked legal capacity to sign the power of attorney, he intended to call Bill, Donna, and Bill's legal assistant as witnesses to ascertain the circumstances of the power of attorney's preparation and execution. He maintained that Bill's acting as both a witness and an advocate created the potential for confusion and prejudice before the trier of fact. In response, Donna maintained that (1) Bill's representation would not involve disclosure of confidential information, (2) the car accident cases in which Bill represented Richard are not substantially related to the guardianship proceeding, (3) Bill did not witness the execution of the power of attorney and would not testify, and (4) the motion was filed for tactical reasons.

         At a hearing on the motion, Richard's counsel stated that Bill represented Richard in a prior legal proceeding in which Richard testified at a deposition that he was not married to Susan. Additionally, Bill served production responses in the guardianship proceeding, including an information sheet on which Richard initially marked "married" but scratched it out and marked "single." Counsel maintained that disclosure of this information violated Rule 1.05 of the disciplinary rules of professional conduct and warranted disqualification under Rule 1.09. When Respondent asked Bill if he would have acquired the information had he not previously represented Richard, Bill replied, "That's speculative, Judge. I don't know."

         Richard testified that he and Susan married in 1992, divorced in 2011, and remained living together as husband and wife, including holding themselves out to the public as spouses. He has been Susan's sole caregiver and believed she is incapacitated. He testified that Bill served as his attorney in two previous cases. He admitted testifying under oath in 2016 that he was not married, but did not recall testifying to being single during a 2018 jury trial. Richard testified that he wanted to keep Susan out of the case. He testified, "I first marked married, and you and I were talking, and I said, what should I do about my wife? You said -- you said, well, just tell them it's your ex-wife and you're taking care of her because you still love her, and that's exactly what you said, Bill Liebbe." He did not give Bill authority to disclose any contents of his deposition or client information sheet, and Bill did not ask to disclose those contents. He expected the information on the client information sheet to remain confidential and to not be disclosed in a future lawsuit.

         At the conclusion of the hearing, Respondent granted the motion to disqualify. Respondent signed an order to this effect on January 16, 2019. This proceeding followed.

         Prerequisites to Mandamus

         Mandamus is an extraordinary remedy. In re Sw. Bell Tel. Co., L.P., 235 S.W.3d 619, 623 (Tex. 2007) (orig. proceeding). Generally, a writ of mandamus will issue only when the relator has no adequate remedy by appeal and the trial court committed a clear abuse of discretion. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding). There is no adequate remedy by appeal for an erroneous order disqualifying counsel. Id. at 383. Accordingly, Respondent's order of disqualification is reviewable by mandamus. See id.; see also In re Sanders, 153 S.W.3d 54, 56 (Tex. 2004) (orig. proceeding).

         Abuse ...

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