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Aubrey v. D Magazine Partners L.P.

United States District Court, N.D. Texas, Dallas Division

May 14, 2019

STEVEN B. AUBREY and BRIAN E. VODICKA, Plaintiffs,
v.
D MAGAZINE PARTNERS, L.P., d/b/a D MAGAZINE; ALLISON MEDIA, INC.; JAMIE L. THOMPSON; ROBERT L. ERMATINGER, JR.; SCOTT ROBERT SAYERS; ERIC VAUGHN MOYE; CITY OF DALLAS; DALLAS COUNTY, TEXAS; and DOES 1-20, all whose true names are unknown, Defendants.

          MEMORANDUM OPINION AND ORDER

          JANE J. BOYLE UNITED STATES DISTRICT JUDGE.

         Before the Court is Plaintiffs' Motion to Disqualify Haynes and Boone, LLP (Doc. 34). For the following reasons, the Court DENIES the motion.[1]

         I. BACKGROUND

         Plaintiffs seek to disqualify Haynes and Boone, LLP (“the firm”) from representing Defendants D Magazine Partners, L.P., Allison Media, Inc., and Jamie Thompson (Defendants) in this litigation. The parties agree that in April 2013, the firm entered into an attorney-client relationship with Plaintiffs. Doc. 34, Pls.' Mot., 4-5; Doc. 48, Defs.' Resp., 8. They signed a “limited engagement” retention agreement to evaluate an amended complaint in a RICO action against North American Title Company and individuals in the Western District of Texas. Doc. 34, Pls.' Mot., 12 (Ex. A, Engagement Letter); Doc. 48, Defs.'s Resp., 1-2; Doc. 49-1, Defs.' App., 76-131 (the 2013 Second Am. Compl.). No. Haynes and Boone attorney appeared in that case, and the firm's involvement ended in December 2013. Doc. 49-1, Defs.' App., 1-75 (docket sheet from the 2013 litigation); Doc. 48, Defs.' Resp., 2-3.

         The firm now represents Defendants in this case, which is based on events in 2016 and 2017, around the time when Ira Tobolowsky died in a “suspicious” fire. Doc. 54, Am. Compl. ¶¶ 1, 35. Central to Plaintiffs' claims against Defendants is an article published by D Magazine, and authored by Defendant Thompson. Id. ¶¶ 186-249; Doc. 49-1, Defs.' App., 133 (Thompson Decl., ¶ 2). While this article centers on Tobolowsky's death, Thompson does mention the 2013 RICO suit, a fact that Plaintiffs incorporate into their complaint. Doc. 54, Am. Compl. ¶ 198-99(k). Thompson declares that the information she obtained and published about the 2013 lawsuit came from publicly available court records and court documents in other proceedings, including Plaintiff Aubrey's deposition, and not from the firm. Doc. 49-1, Defs.' App., 134-35 (Thompson Decl., ¶¶ 4-5). Nonetheless, Plaintiffs fear that the firm's involvement in the current litigation creates a risk that their confidential information will be disclosed. They move for the firm's disqualification based on this fear and their assertion that there is an impermissible substantial relationship between the two suits. Doc. 34, Pls.' Mot., 4-6.

         As this issue is fully briefed, the Court addresses Plaintiffs' motion.

         II. LEGAL STANDARD

         Motions to disqualify are substantive in nature and are thus decided under federal law. FDIC v. U.S. Fire Ins. Co., 50 F.3d 1304, 1312 (5th Cir. 1995). “When considering motions to disqualify, courts should first look to the local rules promulgated by the local court itself, ” In re ProEducation Int'l, Inc., 587 F.3d 296, 299 (5th Cir. 2009); although “local rules are not the ‘sole' authority governing motions to disqualify counsel.” U.S. Fire Ins. Co., 50 F.3d at 1312. For example, attorneys practicing in the Northern District of Texas are subject to the Texas Disciplinary Rules of Professional Conduct. See John Crane Prod. Sols., Inc. v. R2R & D, LLC, 2012 WL 3453696, at *2 (N.D. Tex. Aug. 14, 2012) (citing N.D. Tex. Civ. R. 83.8(e)). Moreover, the Fifth Circuit recognizes the American Bar Association's Model Rules of Professional Conduct as the national standard to consider in reviewing motions to disqualify. In re ProEducation, 587 F.3d at 299. Therefore, when deciding a motion to disqualify, this Court “consider[s] both the Texas Rules and the Model Rules.” Id.[2]

         ABA Model Rule 1.9 prohibits a firm from both: being adverse to a former client in a substantially related manner without the former client's consent; and divulging confidential information:

(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing. …
(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or
(2) reveal information relating to the representation except as these Rules would permit or require with ...

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