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In An Estate Dispute, A Court Held That A Trial Court Should Not Disqualify An Attorney Who Communicated Directly With A Beneficiary Where The Attorney Did Not Know That The Beneficiary Was Represented By Counsel

In In re Jones, parties filed a mandamus proceeding to challenge the trial court’s disqualification of their attorney. No. 12-19-00354-CV, 2019 Tex. App. LEXIS 11267 (Tex. App.—Tyler December 31, 2019, original opinion). An attorney sent an email to the beneficiary of the estate, stating that the attorney for estate was a bad lawyer and only looking out for his own interest and other related bad things. The beneficiary took the position that the estate’s attorney also represented him at the time that he received the email. The beneficiary filed a motion to disqualify the email-sending attorney because an attorney should not directly communicate with a party that is represented by counsel. The trial court agreed and disqualified the attorney.

The court of appeals disagreed with the trial court and granted mandamus relief to reverse the disqualification order because there was allegedly no evidence that the attorney knew that the beneficiary was represented by counsel when he sent the email. The court stated:

In representing a client, a lawyer shall not communicate or cause or encourage another to communicate about the subject of the representation with a person, organization or entity of government the lawyer knows to be represented by another lawyer regarding that subject, unless the lawyer has the consent of the other lawyer or is authorized by law to do so. Accordingly, Rule 4.02 forbids a lawyer from communicating with another person only when the lawyer knows that person has legal counsel in the matter. Relators dispute Respondent’s finding that Reiner knew Anderson represented Steven. It is undisputed that Anderson represented the Estate and that Cogburn, the executor, and Steven, Cogburn’s brother, are beneficiaries of the Estate. However, Steven’s status as a beneficiary does not automatically give rise to an attorney-client relationship with Anderson, the Estate’s attorney. Generally, an attorney hired by an executor to advise her in administering the estate represents the executor and not the beneficiaries. But, it is conceivable that the executor’s attorney could undertake to perform legal services as attorney for one or more beneficiaries. Steven’s testimony supports a conclusion that this scenario occurred with Anderson. Nevertheless, the pertinent question is whether the Estate met its burden of establishing that Reiner knew of that representation at the time he sent the email on September 11, 2019.

Id. The court then reviewed the evidence in the record and determined that: “At best, the record merely establishes the possibility that Reiner knew Steven was represented by Anderson. Such a possibility is insufficient to merit disqualification.” Id. The court concluded:

“As previously stated, disqualification is a severe remedy that should not be granted liberally. Based on the record before us, we cannot conclude that the Estate met its burden of showing, with specificity, that at the time Reiner sent the email to Steven, he knew Steven to be represented by Anderson regarding the litigation. Accordingly, Respondent abused his discretion by disqualifying Relators’ counsel.”

Id.

© 2020 Winstead PC.National Law Review, Volume X, Number 58

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About this Author

David Johnson Financial Litigator Winstead Law Firm

David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the Texas Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary field in Texas. 

David's financial institution experience includes (but is not limited to): breach of contract, foreclosure litigation, lender liability, receivership and injunction remedies upon default, non-recourse and other real estate lending, class...

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