in Re Chao-Qun Lu

• Court: Court of Appeals of Texas
• Decided: June 7, 2022
• Docket: 03-22-00208-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-22-00208-CV

In re Chao-Qun Lu

ORIGINAL PROCEEDING FROM TRAVIS COUNTY

MEMORANDUM OPINION

Relator Chao-Qun Lu has filed a petition for writ of mandamus complaining

of the trial court’s denial of his motion to show authority and motion to disqualify counsel.

Mandamus is an extraordinary remedy that will issue only if the trial court has clearly abused its

discretion and no adequate remedy by appeal exists. In re Murrin Bros. 1885, Ltd., 603 S.W.3d

53, 56 (Tex. 2019) (orig. proceeding).

This mandamus proceeding arises out of a dispute between Relator Lu and Yong

Yu regarding the ownership of Chao Qun Restaurant Group LLC ( the “LLC”). When the LLC

encountered financial difficulties and was at risk of foreclosure by its lenders, the LLC entered

into a promissory note with Yu, which inter alia provided that Yu agreed to lend funds to the

LLC and the parties would (after Yu satisfactorily completed his due diligence in connection

with the LLC’s business) enter into an agreement whereby Yu would acquire 65% of the

membership interest in the LLC. Relator and Yu thereafter executed a membership interest

purchase agreement and a first amended and restated operating agreement.

After disputes arose among the parties to this original proceeding and third parties

arising out of those contractual documents, Yu and the LLC filed the underlying lawsuit against Relator. Relevant to this mandamus proceeding, Relator filed a Rule 12 motion to show

authority and motion to disqualify counsel of the LLC. Relator challenged Yu’s authority to hire

legal counsel for the LLC and the law firm’s dual representation of Yu and the LLC. The trial

court denied the motion March 23, 2022, and this mandamus proceeding followed.

Having reviewed the petition and the relevant record before us, we must deny

mandamus relief. Relator complains that Yu and the LLC are opposing parties with adverse

interests and therefore legal counsel is disqualified under Rule 1.06 and Rule 1.12. See Tex.

Disciplinary Rules Prof’l Conduct R. 1.06(a) (“A lawyer shall not represent opposing parties to

the same litigation.”); id. R. 1.12 & cmt.5 (cautioning that an attorney can only represent a

director/officer if Rule 1.06 is satisfied). Relator can only point to the possibility of adversity

between the LLC and Yu, which is insufficient to demonstrate attorney disqualification grounds.

See In re Luecke, 569 S.W.3d 313, 317 (Tex. App.—Austin 2019, orig. proceeding) (“Mere

allegations of unethical conduct or evidence showing a remote possibility of a violation of the

disciplinary rules will not suffice.”). Furthermore, potential adversity between the LLC and Yu

rides on the ultimate merits of the parties’ contractual dispute, but many factual issues remain to

be decided. See In re Angelini, 186 S.W.3d 558, 560 (Tex. 2006) (orig. proceeding) (“It is well

established Texas law that an appellate court may not deal with disputed areas of fact in an

original mandamus proceeding.”).

Relator also seeks mandamus relief as to the denial of the Rule 12 motion to show

authority, but Relator has not shown how he lacks an adequate remedy by appeal. In re Murrin

Bros., 603 S.W.3d at 6162.

Accordingly, we deny the petition for writ of mandamus. See Tex. R. App.

P. 52.8(a).

2 __________________________________________ Thomas J. Baker, Justice

Before Justices Goodwin, Baker, and Triana

Filed: June 7, 2022