in the Matter of the Marriage of James Vaughn IV and Amber Vaughn

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-21-00167-CV

IN THE MATTER OF THE MARRIAGE OF JAMES VAUGHN IV AND AMBER VAUGHN

From the 369th District Court Leon County, Texas Trial Court No. CV20-0222

ABATEMENT ORDER

On September 10, 2021, Appellee Amber Vaughn (Amber) filed a notice

designating Amy Ward (Ward) as her attorney in this appeal. Subsequently, on

September 13, 2021, Appellant James Vaughn IV (James) filed a Motion to Disqualify

Opposing Counsel. James asserts in his motion that in August 2020, he was a prospective

client of Ward. James states that he consulted with Ward about the underlying case but

that he declined to enter into a client-lawyer relationship with her. James argues that this

nevertheless creates a conflict of interest that prevents Ward from representing Amber in

this appeal. “[Texas Committee on Professional Ethics] opinions are concerned with matters of

attorney discipline and are advisory rather than binding.” Sidley Austin Brown & Wood,

LLP v. J.A. Green Dev. Corp., 327 S.W.3d 859, 866 (Tex. App.—Dallas 2010, no pet.).

Nevertheless, opinion 691 of the Professional Ethics Committee of the Supreme Court of

Texas provides:

A lawyer who consults with a person about the possibility of forming a client-lawyer relationship with respect to a matter owes that person a duty of confidentiality under Rule 1.05 of the Texas Disciplinary Rules of Professional Conduct and may not use or reveal information communicated by the prospective client except in accordance with that Rule.

A lawyer’s consultation with a prospective client may result in a disqualifying adverse limitation under Rule 1.06(b)(2). Whether a lawyer’s representation of a client reasonably appears to be adversely limited by the lawyer’s duty of confidentiality to a former prospective client is ordinarily a factual inquiry. As a general rule, a lawyer should not represent a client with interests materially adverse to those of a former prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter.

Tex. Comm. on Prof’l Ethics, Op. 691 (2021).

We therefore abate this cause to the trial court. The trial court is ORDERED to

conduct an evidentiary hearing on James’s Motion to Disqualify Opposing Counsel

within 21 days of the date of this Order. The trial court is thereafter ORDERED to make

findings of fact and conclusions of law within 28 days of the date of this Order.

The court reporter is ORDERED to file a supplemental reporter’s record of the

hearing within 35 days of the date of this Order. The trial court clerk is ORDERED to file

In re Marriage of Vaughn Page 2 a supplemental clerk’s record, containing the trial court’s findings of fact and conclusions

of law, within 35 days of the date of this Order.

PER CURIAM

Before Chief Justice Gray, Justice Johnson, and Justice Smith Order issued and filed September 29, 2021 RWR

In re Marriage of Vaughn Page 3