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In re Posadas USA7/31/2001
Original Mandamus Proceeding
PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED
Relators, Posadas USA, Inc., Bia Acquisitions, Ltd., and Jonathan Hege, seek a writ of mandamus ordering respondent, Judge Manuel R. Flores, to vacate his order that denied Posadas' motion to allow their attorneys to withdraw from this case, and directing Judge Flores to grant the motion. Because we conclude that Posadas is entitled to the relief sought, we conditionally grant the writ.
Factual and Procedural Background
The underlying suit is a wrongful death and survival action, arising from an automobile accident. Jonathan Hege, a bellman at the Holiday Inn in Laredo, was transporting a guest from the hotel to the airport, when the van he was driving crossed the median and struck Sandra C. Garza's vehicle. Garza died as a result of the injuries she sustained in the accident.
Garza's survivors brought suit against Posadas USA, Inc. d/b/a Holiday Inn/Civic Center and Hege ("Posadas"). All three defendants are represented by one law firm. On June 13, 2001, five days before trial, Posadas' counsel filed a motion for continuance and a motion to withdraw from representation of Posadas, claiming he received a communication from his clients which creates an "irreconcilable conflict." After a hearing on June 14, 2001, Judge Flores denied the motions.
Mandamus Generally
Posadas claims here that the trial judge abused his discretion "in refusing to permit the withdrawal of counsel for Defendants/Relators and in refusing to continue the trial setting in this case." A writ of mandamus may be issued to correct a clear abuse of discretion. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992). Issuance of the writ, however, is limited to only those instances in which an adequate remedy by appeal is not available. Id. If Posadas was required to raise this matter by appeal, it would have to submit to the trial of this case without the benefit of conflict-free representation. Haley v. Boles, 824 S.W.2d 796, 798 (Tex. App.-Tyler 1992, orig. proceeding). Withdrawal of counsel, therefore, is a proper subject of a mandamus proceeding. Id.; see also National Med. Enter., Inc. v. Godbey, 924 S.W.2d 123, 133 (Tex. 1996) (declaring disqualification of an attorney as proper grounds for mandamus).
Motion to Withdraw
Although the Texas Disciplinary Rules are not controlling standards governing motions to withdraw, they articulate considerations relevant to the merits of such motions. See Spears v. Fourth Court of Appeals, 797 S.W.2d 654, 656 (Tex. 1990) (applying the Rules to motions to disqualify). The moving party bears the burden to establish with specificity a violation of the disciplinary rules. Id. Evidence showing a remote possibility of a violation of the rules will not suffice under this standard. Id.
The propriety of Judge Flores's ruling must be reviewed in terms of Texas Disciplinary Rule of Professional Conduct 1.06(b) and (e), as well as a traditional mandamus standard of review. Conoco Inc. v. Baskin, 803 S.W.2d 416, 419 (Tex. App.-El Paso 1991, orig. proceeding). In conducting such a review, we consider: (1) the existence of a reasonable apparent conflict of interest; (2) effective consent by relators to multiple representation; (3) waiver of the complaint by relators; and (4) whether relators would suffer any injury as a result of this conflict. Id.
A. Whether a Conflict Exists
Rule 1.06(b) provides that "a lawyer shall not represent a person if the representation of that person ... become adversely limited by the lawyer's or law firm's responsibilities to another client...." Tex.
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