Tuesday, August 16, 2011

Another Delayed Motion to Disqualify, Another Implied Conflicts Waiver

We’ve previously touched on the question: “When Does ‘Delay’ Equal Implied Consent?” (See this case, which notes that two years as too long to wait, and this one, which holds that four months is fine if the law moving firm was actively trying to resolve the matter directly with unresponsive opposing counsel.)

Now Bill Frievogel notes a recent decision by the Court of Appeals of Texas (14th District), which just ruled that a thirteen month delay is too long: IN RE: LOUISIANA TEXAS HEALTHCARE MANAGEMENT, L.L.C. and Merensy Reef Hospital Corporation, Relators. (No. 14–11–00503–CV):
  • “A party who does not file a motion to disqualify opposing counsel in a timely manner waives the complaint. Vaughan v. Walther, 875 S.W.2d 690 (Tex.1994) (orig. proceeding). In determining whether a party has waived the complaint, the court will consider the length of time between when the conflict became apparent to the aggrieved party and when the aggrieved party filed the motion to disqualify.”
  • It is undisputed that relators first learned Ferguson was consulting with Plaintiffs' counsel in discovery responses on or about February 10, 2010. The motion to disqualify was not filed until March 11, 2011, thirteen months later.”
A good amount of the original motion and appeal centered on debating "who knew what and when." But in the end, the court essentially ruled: "You know you knew it back then."
  • “From the above testimony, the trial court could have rejected relators' claim that they were unaware Ferguson's consult with the opposing party involved a substantially related matter. Accordingly, the record supports a finding that relators became aware of the conflict in February 2010 when they were told Ferguson was an expert for the opposing party.”

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