Callaway v. Barber

760 S.W.2d 698, 1988 WL 97805
CourtCourt of Appeals of Texas
DecidedSeptember 15, 1988
DocketNo. 13-87-504-CV
StatusPublished
Cited by2 cases

This text of 760 S.W.2d 698 (Callaway v. Barber) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Callaway v. Barber, 760 S.W.2d 698, 1988 WL 97805 (Tex. Ct. App. 1988).

Opinion

OPINION

DORSEY, Justice.

Billy Callaway, Carlos Hobgood, and KJM, Inc., filed suit against Langdon Barber and Langdon Barber Groves, Inc., for breach of contract and wrongful discharge arising out of the purchase of a majority interest in Langdon Barber Groves, Inc. The plaintiffs also sued Molly Matlock and the law firm of Atlas and Hall for wrongful conversion relating to the same transaction.

Langdon Barber and Langdon Barber Groves, Inc., counterclaimed against the plaintiffs for breach of contract, fraud and negligence. Molly Matlock, Atlas and Hall, and Langdon Barber then instituted various cross-actions against one another.

On June 5,1987, the trial court entered a pre-trial order requiring that the deposition of Carlos Hobgood be taken by June 7. That same day, Stephen Gano, as attorney for the plaintiffs, filed a notice of intent to take a second deposition of Hobgood on June 6 in Shreveport, Louisiana. Gano flew to Shreveport on the evening of June 5 and met with Hobgood. During private discussions which took place that evening [700]*700and the morning of June 6, it became apparent to Gano that the Hobgood’s interests were “conflicting, inconsistent, and discordant" with the interests of Callaway and KJM. Gano advised Hobgood of the conflict, at which time Hobgood discharged the firm of Gano & Donovan, P.C. as his legal counsel.

At the scheduled deposition, Gano informed the attorneys for the defense of the problem. In accordance with Gano’s advice, Hobgood refused to answer any questions until he obtained independent counsel.

During a pre-trial hearing on June 8, Gano argued his Motion to Withdraw before the trial court. He asked the court to allow him to 1) withdraw as Hobgood’s counsel as mandated by Disciplinary Rule 2-110 (B)(2), and 2) continue his representation of Callaway and KJM in their lawsuit against the defendants. When the trial court asked Gano to reveal the nature of his clients’ conflict of interests, Gano refused on the grounds that the subject matter was privileged and confidential.

The trial court stated:

Mr. Gano, I will allow you to withdraw, if you withdraw all the way across the board. Otherwise, you are counsel of record for all Plaintiffs. You have shown no evidence other than your word and your representations on your motion to withdraw that there is a conflict based on confidential communications.
% * * * * *
If there is a conflict, there is a conflict across the board.

The court then entered its written order, which states in part:

The Court, being of the opinion that a conflict of interest arising under any circumstances would create a conflict of interest? as to all Plaintiffs represented by said attorneys, granted Gano and Donovan’s Motion to Withdraw as Attorney of Record for all Plaintiffs.
IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that Gano and Donovan be withdrawn as Attorneys of Record for Billy Callaway, Daniel Hobgood and KJM, Inc., in the above referenced matter.

By their first through fourth points of error, Callaway and KJM contend that the trial court erred in requiring Gano & Donovan to withdraw as their counsel in the absence of any objection by a party with standing to complain of the representation.

The only evidence before the trial court regarding the alleged conflict of interests between Hobgood and the remaining plaintiffs consists of the testimony of Gano at the June 8 hearing, the sworn affidavit of Gano attached to Gano & Donovan’s Motion to Withdraw, and the sworn affidavits of Hobgood attached to the same motion and to the Motion for Continuance. None of the evidence indicates that Gano would be precluded from representing Callaway and KJM once his firm had been discharged by Hobgood.

Appellees assert that the trial court’s presumption of an “across the board” conflict was valid under Turner v. Turner, 385 S.W.2d 230, 236 (Tex.1964), wherein the Supreme Court stated:

We recognize the rule that an attorney, after accepting employment and enjoying the confidences of one client, though af-terwards discharged by his client without cause, cannot in general, with propriety, accept an employment by the opposite party in the same case, (emphasis ours).

The Turner rule provides an ethical guideline for the attorney faced with representing clients who possess opposing interests. It does not, however, authorize a trial court to engage in a presumption of impropriety and order an attorney to withdraw as counsel for a party against that party’s wishes.

Disciplinary Rule DR 5-105 of the Code of Professional Responsibility provides in pertinent part:

(B) A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client, except to the extent permitted under DR5-105(C).
[701]*701(C) In the situations covered by DR5-105(A) and (B), a lawyer may represent multiple clients if it is obvious that he can adequately represent the interests of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each, (emphasis ours)..

The foregoing rule clearly indicates that the decision of whether to represent multiple clients is a decision to be made by the attorney and his clients. As the court stated in Pioneer Natural Gas Co. v. Caraway, 562 S.W.2d 284, 290 (Tex.Civ.App.—Eastland 1978, writ ref’d n.r.e.):

The doctrine seems to be well settled that, “The objection that an attorney is disqualified by reason of his representing adverse interests, is available only to those as to whom the attorney in question sustains or has sustained the relation of attorney and client ...” (quoting Ferguson v. Alexander, 122 S.W.2d 1079, 1081 (Tex.Civ.App.—Dallas 1938, writ dism’d jdgm. cor.)).

We find that in the absence of an objection by Callaway and/or KJM, the trial court exceeded the bounds of its authority in ordering Gano to withdraw as attorney for those parties. Points one through four are sustained.

By points of error five through eight, appellants Callaway and KJM assert the trial court erred in ordering that they “take-nothing” by their suits; appellant Gano & Donovan asserts the trial court erred in imposing monetary sanctions against it for obstruction of discovery.

On June 2, 1987, Langdon Barber and Langdon Barber Groves, Inc., filed a Motion for Sanctions for Failure to Answer Interrogatories against Carlos Hobgood.

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Related

In Re Robinson
90 S.W.3d 921 (Court of Appeals of Texas, 2002)
Hoggard v. Snodgrass
770 S.W.2d 577 (Court of Appeals of Texas, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
760 S.W.2d 698, 1988 WL 97805, Counsel Stack Legal Research, https://law.counselstack.com/opinion/callaway-v-barber-texapp-1988.