United States District Court, N.D. Texas, Dallas Division
STEVEN B. AUBREY and BRIAN E. VODICKA, Plaintiffs,
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
J. BOYLE UNITED STATES DISTRICT JUDGE.
the Court is Plaintiffs' Motion to Disqualify Haynes and
Boone, LLP (Doc. 34). For the following reasons, the Court
DENIES the motion.
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.
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.
issue is fully briefed, the Court addresses Plaintiffs'
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.”
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
(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 ...