## NO. 12

- 23

- 00236

- CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS

IN RE:

TRENT BROOKSHIRE ,
RELATOR §
§
§ ORIGINAL PROCEEDING

MEMORANDUM OPINION

Relato r , Trent Brookshire, filed this original proceeding , in which he seeks an order requiring Respondent 1 to vacate an order disqualifying his attorney from representing him and to sign an order denying the motion to disqualify filed by the R eal P arty in I nterest , Caroline Meads
Brookshire

. 2 We deny the writ.

B ACKGROUND On October 4, 2021, T rent and his wife, Caroline , signed an engagement letter with Rogge Dunn, an attorney who frequently represents executives in employment matters. Trent and
Caroline retained Dunn to represent them regarding Trent’s termination from his position as Chief Operating Officer (COO) at Brookshire Grocery Company ( BGC ) and Brookshire Holdings, Inc. ( BHI )

. A few months after retaining Dunn, Trent and Caroline separated, and Caroline sought a
divorce in July 2022. The following month, Dunn filed t he under lying employment discrimination
lawsuit against BGC and BHI , in which Trent asserted claims for disability discrimination and
retaliation and sought damages for “ lost compensation, lost employment benefits, pecuniary

1 Respondent is the Honorable Clay M. White, J udge of the County Court at Law No. 3 in Smith County, Texas.

2 Because the R elator and the R eal P arty in I nterest have the same surname, we will refer to them by their first names for clarity and brevity.2 losses, injury to [his] reputation and professional standing, and emotional pain and suffering [,] as well as punitive damages ” and “reinstatement to his COO position.”
On April 7, 2023, while the divorce action w as proceeding , Caroline intervened in Trent’s
lawsui t , arguing that she has a “justiciable community property interest in certain damages potentially to be awarded to [Trent], ” and because her interests are not aligned with Trent’ s interests, she has a legal or equitable interest in th e lawsuit. Caroline plead ed that she “ asserts the same claims against Defendants as those brought by [Trent]” and maintained that the intervention is “essential to effectively protect” her justiciable interest because Trent “intends to attempt to mitigate and/or deny [Caroline] her community property interests [.] ” Caroline also sought a declaratory judgment regarding the natur e and extent of her community property interests in any recovery by Trent , and she plead ed that if she were not allowed to intervene, Trent would not adequately protect her community property interests. According to Caroline, without her presence
in the lawsuit , Trent could “artfully draft” pleadings, motions, and settlement documents “to intentionally craft damages issues

. . . to try to deny [] the community marital estate its recovery.” On April 12, BGC and BHI deposed Caroline in Trent’s lawsu it

. During said deposition,
Dunn , who appeared at the deposition as Trent’s attorney , extensively cross

- examined Caroline. Dunn questioned Caroline regarding her feelings toward Trent and asked whether she (1) r eceived financial support from the Brookshire family, (2) intended to testify that Trent should lose his discrimination lawsuit, (3) knew who was to blame for communication problems between Trent
and his father ( t he Chief Executive Officer of BGC and BHI , a s well as Trent’s former boss ) , (4) knew how many days Trent took off from work in 2019, (5) possessed evidence supporting her contention that Trent worked only fifty percent of the time from January to October 18, 2021, when he was terminated, and (6) knew who Tre nt played golf with and whether his golfing was
business related

. Dunn also asked Caroline ( 1 ) what evidence she possessed regarding Trent’s alleged use of certain medication s , ( 2 ) how many times she flew on the Brookshire family’s private plane, ( 3 ) whether she and Trent had “ outbursts ” at home , ( 4 ) the nature of her father’s communications with BGC’s general counsel , ( 5 ) whether she provided information to BGC to
assist BGC with T rent’s lawsuit, and ( 6 ) whether she was attempting to prevent Trent from gaining custody of their children

. At one point during the deposition, Dunn indicated that Caroline did not fully answer one of his question s , and he stated to Caroline , “we’re going to keep asking. If we have to go to the3 judge, we’ll go to the judge and come back to Dallas again.” Dunn eventually asked Carolin e about hiring his firm and signing a representation agreement, and she testifi ed, “I don’t remember doing that, but I ’m sure if you have it, I did.” The attorneys representing Caroline asked Dunn if he ever represented Caroline , and Dunn stated, “she’s not my client at this point .” The parties went off the record to discuss the matter, and when they returned, Caroline’s counsel stated ,

“ During the deposition, it has become clear that there was a possible prior representation of Ms.
Caroline Brookshire. The parties have decided to adjourn the deposition . . . at this time so that
we can evaluate that issue as c ounsel and decide how to proceed.”
Caroline subsequently filed a motion to disqualify Dunn , asserting that Dunn could not act adversely to her in the same matter in which he previously agreed to represent her. In her motion to disqualify , Caroline quoted portions of Dunn’s cross
- examination of her a t the deposition, and plead ed that she and her attorneys first became aware of an existing attorney

- client relations hip
between Dunn and Caroline during the deposition. Caroline attached documents indicating that,

a t the request of her counsel, Dunn provided a copy of the engagement agreement signed by Trent
and Caroline

. The engagement agreement stated that Dunn and his law firm agreed to represent
Trent and Caroline and stated that the representation is limited to “providing advice regarding your rights at Brookshire Grocery, evaluating and negotiating a severance agreement[,] and possibly pursuing claims against Brookshire Grocery Co [mpany].” Paragraph ten of the engagement agreement provided that the parties’ relationship “automatically ends upon written notice or the
end of the [a] ssignment.” Caroline’s motion to disqualify also pointed out that i n a n email t o Caroline’s counsel on May 16, 2023 , Dunn asserted that because Caroline told him she did not want to sue BGC , his representation of Caroline automatically terminated when Trent sued BGC and BHI after settlement negotiations failed

. Dunn ’s email also stated that it “further confirms” that his representation of Caroline “has ended.” After corresponding with Caroline’s counsel regarding the potential conflict of interest , Dunn filed an answer to Caroline’s petition in intervention on Trent’s behalf, denying each of Caroline’s allegations and praying that she “ take nothing [

. ]” Moreover, Dunn retained an attorney, and Dunn’s counsel sent Caroline’s attorney a letter stating that Dunn would not agree to withdraw from representing Trent. After conducting an evidentiary4 hearing on Caroline’s motion, during which Dunn was the sole witness , Respondent signed an order granting Caroline’s motion to disqualify Dunn , and Trent then filed this original proceeding. 3

P REREQUISITES T O M ANDAMUS Mandamus is an extraordinary remedy. In re Sw. Bell Tel. Co., L.P. , 235 S.W.3d 619, 623 (Tex. 2007) (orig. proceeding). To be entitled to mandamus relief, a relator must establish that (1) the trial court clearly abused its discretion and (2) he lacks an adequate remedy by appeal. In re Prudential Ins. Co. of Am. , 148 S.W.3d 124, 135

- 36 (Tex. 2004) (orig. proceeding). A relator

must establish both prerequisites to mandamus. In re Fitzgerald , 429 S.W.3d 886, 891 (Tex. App.

— Tyler 2014, orig. proceeding).
Because there is generally no adequate appellate remedy if a part y’s counsel is disqualif ied , Respondent’s order of disqualification is reviewable by mandamus. See In re Murrin Bros. 1885,
Ltd. , 603 S.W.3d 53, 57 (Tex. 2019) (orig. proceeding); In re Cerberus Capital Mgmt. , L.P

. , 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding). We therefore must determine whe ther Respondent abused his discretion by disqualifying Dunn. See In re Nitla S.A. de C.V. , 92 S.W.3d 419, 422 (Tex. 2002) (orig. proceeding)

. A court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Walker v. Packer , 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding)

. A court has no discretion in determining what the law is or appl ying the law to the facts. Prudential , 148 S.W.3d at 135 ; Walker , 827
S.W.2d at 840

. Although we will not substitute our judgment for that of the trial court, we must consider whether the trial court acted without reference to guiding rules and principle s. In re M

I L.L.C. , 505 S.W.3d 569, 574 (Tex. 2016) (orig. proceeding).

D ISQUALIFICATION Trent seeks a writ requiring Respondent to vacate his order disqualifying Dunn and to sign an order denying Caroline’s motion to disqualify. Specifically, Trent argues that “[t]he trial court abused its discretion by disqualifying Dunn without any evidence of actual prejudic e.”

3 On the same date, Respondent also signed an order striking Carolin e’s intervention

. S aid order is not challenged in this proceeding. Neither party contends that the fact that Caroline is no longer involved in Trent’s lawsuit against BGC and BHI renders Respondent’s order moot. Furthermore, Respondent’s striking of Caroline’s intervention does not impact our analysis of Trent’s petition for writ of mandamus.5 Applicable Law Disqualification of counsel is a severe remedy that can “result in immediate and palpable harm, disrupt trial court proceedings, and deprive a party of the right to have counsel of choice.”
I

n re Nitla S.A. de C.V. , 92 S.W.3d at 422. Although courts frequently look to the disciplinary rules when deciding d isqualification issues, “the disciplinary rules are merely guidelines

— not controlling standards

— for disqualification motions.” Id

. Even if a lawyer violates a disciplinary rule, the party seeking disqualification must show that the “ lawyer’s conduct caused actual prejudice that requires disqualification.” Id

. “Technical compliance with ethical rules might not foreclose disqualification, and conversely a violation of ethical rules might not require disqualification.” In re Liebbe , No. 12

- 19

- 00044

- CV, 2019 WL 1416637, at *3 (Tex. App.

— Tyler Mar . 29, 2019, orig. proceeding) (mem. op.). When considering a motion to disqualify, “ the trial court must strictly adhere to an exacting standard to discourage a party from using the motion as a dilatory trial tactic.” Id

. The movant must establish with specificity a violation of the disciplinary rules. In re Thetford , 574 S.W.3d 362, 373

- 74 (Tex. 2019) (orig. proceeding);
Liebbe , 2019 WL 1416637, at *3

. “Mere allegations of unethical conduct or evidence showing a remote possibility of a violation of the disciplinary rules will not suffice to merit disqualification.”
Liebbe , 2019 WL 1416637, at *3. Furthermore , a court must consider the extent of the poten tial prejudice to the nonmovant from disqualifying his counsel

. Murrin Bros. , 603 S.W. 3d at 57. Analysis Trent and Caroline agree that Rule 1.09 of the Texas Rules of Professional Conduct governs the instant cas e. In addition, Trent c oncede s that Dunn formerly represented Caroline and

cross
- examined her at her deposition , and his sole complaint is that the trial court disqualified
Dun n without evidence demonstrating actual prejudice to Caroline

. Rule 1.09 (a) of the Texas Rules of Professional Conduct provides as follows: “ Without prior consent, a lawyer who personally has formerly represented a client in a matter shall not thereafter represent another person in a matter adverse to the former client [] . . . (3) if it is the same or a substantially related matter.” T EX

. R. P ROF ’ L C ONDUCT R. 1.09(a) ( 3) , reprinted in T EX

. G OV ’ T C ODE A NN

. , tit. 2, subtit. G, App. A (West 2019) (Tex. State Bar R. art. X, § 9). Rule 1.09 (a) prohibits adverse representation , except with prior consent, when the party seeking disqualification shows the existence of any of the three circumstances set forth in subparagraph (a) of Rule 1.09.
Id

. ; see Liebbe , 2019 WL 1416637, at *3. The limitation contained in S ubs ection three of Rule6 1.09(a) “prevents a lawyer from switching sides and representing a party whose interests are adverse to a person who disclosed confidences to the lawyer while seeking in good faith to retain the lawyer.” T EX

. R. P ROF ’ L C ONDUCT R. 1.09 , cmt. 4A

. Even if the attorney withdrew from the representation before the client disclosed any confidential information, the prohibition in R ule 1.09(a)(3) still applies. Id

. If an attorney works on a matter, an irrebuttable presumption arises that the attorney obtained confidential information during the representation. Thetford , 574 S.W.3d at 37 2

- 7 3 ( applying irrebuttable presumption in context of motion to disqualify pursuant to Rule s 1.02, 1.06,
and 1.09) ; In re Columbia Valley Healthcare S ys., L.P. , 320 S.W.3d 819, 824 (Tex. 2010) (orig. proceeding) (applying irrebuttable presumption in case involving disqualification pursuant to Rule 1.09) ; In re Innov. Res. Sol., L L C , No. 12

- 15

- 00254

- CV, 2016 WL 1254058, at * 3

- 4 (Tex. App.

— Tyler Mar. 31, 2016, orig. proceeding) (mem. op.) (applying irrebuttable presumption in case involving disqualification pursuant to Rule 1.09)

. “The reason this presumption is conclusive is the need ‘to prevent the moving party from being forced to reveal the very c onfidences sought to be protected. ’ ” Columbia Valley Healthcare Sys. , 320 S.W.3d at 824 (quoting In re Amer. Home Prods. Corp. , 985 S.W.2d 68, 74 (Tex. 1998) (orig. proceeding)). “The test for disqualification is met by demonstrating a genuine threat of disclosure, not an actual materialized disclosure

. ” Grant v. Thirteenth Court of Appeals , 8 88 S.W.2d 466, 467 (Tex. 1994) (orig. proceeding). As mentioned above, Trent contends that the trial court abused its discretion by disqualifying Dunn without evidence of “actual prejudice” to Caroline. Therefore, we must
determine whether Caroline was required to provide evidence of actual prejudice

. In Liebbe , this Court was tasked with determining whether a party seeking disqualification of an attorney due to an alleged violation of Rule 1.09(a) (2) was required to demonstrate actual prejudice. Liebbe , 2019 WL 1416637, at * 5

. In beginning our analysis in Liebbe , we noted that many of the cases that require evidence of actual prejudice (1) involve rules other than Rule 1.09 and (2) predate our opinion in In re Innovation Resource Solution, Inc., L.L.C

. Id . at *5

- 6 (citing In re Inno v. Res. Sol., L.L.C. , 2016 WL 1254 058, at * 5

- 6

. )

. We also explained that although the comments to the Texas Rules of Professional Conduct do not add obligations to the rules, they often illustrate how the rules are applied and guide courts in interpreting the m

. Id

. at * 6. Additionally, this Court pointed out that we interpret disciplinary rules in accordance with the rules of statutory
construction , and we explained that , unlike the comments to some of the other rules of p rofessional7 conduct, the comments to Rule 1.09 “contain no reference that could be interpreted as requiring a party to show actual prejudice in addition to a violation of Rule 1.09(a)(2).” Id

. We held that “[b]ecause neither the plain language of Rule 1.09, nor its comments, require a showing of actu al prejudice, we decline to read an actual prejudice requirement into the plain language of Rule 1.09

. ”
Id

. Accordingly, we concluded that evidence of actual prejudice was not required, and we held
that because the party seeking disqualification established a violation of Rule 1. 09, the relator failed to satisfy her burden of proving that the r espondent abused his discretion by granting the motion to disqualify. Id

. Less than two month s after we decided Li e bbe , the Texas Supreme Court again addressed disqualification of counsel due to an alleged violation of Rule 1

. 09

. See The t ford , 574 S. W .3d at
3 7 2

. In The t ford , the Supreme Court confirmed the existence of an irrebuttable presumption , stating as follows: We have repeatedly said that lawyers who violate the conflict

- of

- interest rules must be disqualified because there is an irrebuttable presumption that a lawyer obtains a client’s confidential information during representation. Although the attorney will not be presumed to have shared that information with his current client, the ‘ appearance of impropriety ’ demands that the trial court disqualify counsel

. Id . at 373 (footnote s omitted)

. In support of his argument that evidence of actual prejudice is required , Trent cites the Texas Supreme Court’s decision in Murrin Bro thers , 4 which was decided less tha n seven months
after Thetford

. Trent points out that in Murrin Brothers , after noting that the movant sought disqualification under Rules 1.06 and 1.09, the Texas Supreme Court stated that “[e]ven if a violation of the disciplinary rules is established, the party requesting disqualification must also show it will suffer prejudice if disqualification is not granted.” Murrin Br os. , 603 S.W.3d at 57 (citing Nitla , 92 S.W.3d at 422 ). Citing two post

- M urrin Brothers opinions by the El Paso Court of Appeals , which discussed Murrin Brothers , Trent argues that Murrin Brothers “confirmed the need for proof of actual prejudice under rule 1.09

. ” See In re TMD Defense & Space, L LC , 649 S.W.3d 764, 773

- 74 (Tex. App.

— El Paso 2022, orig. proceeding) (reiterating that Murrin
Brothers require s actual prejudice, but concluding that the trial court did not abuse its discretion

4 The Texas Supreme Court decided Murrin Brothers on December 20, 2019, just a few months after o ur opinion i ssued in Liebbe

. See In re Murrin Bro s . 1885 , Ltd. , 603 S.W.3d 53 (Tex. 2019) (orig. proceeding); In re Liebbe , No. 12

- 19

- 00044

- CV, 2019 WL 1416637, at *3 (Tex. App.

— Tyler Mar. 29, 2019, orig. proceeding) (mem. op.)8 by finding a reasonable probability that a client’s confidential information could be used to the
client’s detri ment) ; In re Fenenbock, 621 S.W.3d 724, 736

- 38 (Tex. App.

— El Paso 2020, orig. proceeding) ( stat ing that Murrin Brothers “appears to refute” the proposition that proof of prejudice is not required , but ultimately concluding that the party seeking disqualification established that she would be “presumptively prejudiced” )

. Trent asserts that Murrin Brothers overruled this Court’s opinions in Liebbe and Innovation Resource Solution , as well as a 2006 opinion of our sister court in El Paso, each of which held that evidence of actual prejudice is not required when a party seeks disqualification under Rule 1.09. See Liebbe , 2019 WL 1416637, at *6; Innov. Res. Sol. , 2016 WL 1254058, at *4; Cimarron Agric ., Ltd. v. Guitar Holding Co.,
L.P. , 209 S.W.3d 197, 203

- 05 (Tex. App.

— El Paso 2006, no pet.). Additionally, Trent c ontends
that Murrin Brothers “leaves no doubt: [R]ule 1.09’s irrebuttable presumption no longer suffices to support disqualification [.]” We disagree. The underlying lawsuit in Murrin Brother s was a shareholder derivative proceeding, in
which one group (the Murrin G roup) sought to disqualify an other group’s attorney for allegedly violating Rules 1.06(a) and 1.09 of the Texas Rules of Professional Conduct by representing parties on both sides of the same lawsuit

. Murrin Bro s. , 603 S.W.3d at 57

- 58. After noting that the Murrin Group alleged violations of both Rules 1.06(a) and 1.09, the Court then explained that “the foundation of the Murrin Group’s disqualifi cation argument” is the notion that an attorney was representing parties who are “directly adverse to one another

— that they are ‘ opposing parties ’ for purposes of Rule 1.06(a).” 5 Id . at 58. Specifically, the Murrin G roup claimed that the same
law firm could not represent the other ownership group and the company. Id. at 56. T he C ourt noted that in shareholder derivative litigation, companies are simultaneously plaintiff and defendant, depending on how one looks at it. Id . at 58. Thus , “ the proper inquiry is to look to
whether the substance of the challenged representation requires the lawyer to take conflicting positions or to take a position that risks harming one of his clients [] ” i n the derivative litigation

. Id

. After acknowledging that it announce d no cate gorical rule governing dual representation in derivative litigation , the Court then considered the true extent of the entities’ adversity

. Id. at

5 Rule 1.06( a ) prohibits a lawyer from representing opposing parties to the same litigation. T EX

. R. P ROF ’ L C ONDUCT R. 1.0 6 (a), reprinted in T EX

. G OV ’ T C ODE A NN

. , tit. 2, subtit. G, App. A (West 20 19 ) (Tex. State Bar R. art. X, § 9)

.9 59. It is against this backdrop that the C ourt noted that the Murrin Group contend ed “as it must”
that dual representation would prejudice it

. Id

. at 59. T he Court frame d its analysis solely in terms
of Rule 1.06 , conclud ing that when determining whether a company and individual defendants are “opposing parties” for purposes of Rule 1.06(a) in a derivative lawsuit, courts must consider “the true extent of their adversity u nder the circumstances

. ” I d

. at 58

- 60. The Court discussed the
various interests at play between the parties, including an analysis of the Murrin Group’s arguments regarding potential ly confusing the jury or prejudicing the jury a gainst the Murrin Group , and ultimately held that t he trial court did not abuse its discretion by denying the motion to disqualify. Id . at 6 0

- 6 2

. With the exception of mentioning at the outset that the Murrin Group sought disqualification under both Rules 1.06(a) and 1.09, the Court did no t discuss Rule 1.09, let alone
conduct its analysis based upon it. Moreover, the Court did not distinguish, analyze, or mention
its precedent holding that if an attorney works on a matter, an irrebuttable presumption arises that the attorney obtained confidential information during the representation , or th is Court’s cases that explicitly applied said precedent in the context of Rule 1.09

. See Thetford , 574 S.W.3d at 373; Columbia Valley Healthcare System , 320 S.W.3d at 824; Liebbe , 2019 WL 1416637, at *6;
Innov. Res. Sol. , 20 16 WL 1254058, at *4. In addition, the language the Texas Supreme Court
used in Murrin Brothers when discussing the prejudice requirement is substan tive ly identical to the language it used in Nitla in 2002 ; in fact, when mentioning the prejudice requirement in Murrin
Brothers , the Texas Supreme Court directly cited solely to its own holding in Nitla

. Murrin Bros ., Ltd

. , 603 S.W.3d at 57 (citing Nitla for the proposition that “[e]ven if a violation of the disciplinary rules is established, the party requesting disqualification must also show it will suffer prejudice if disqualification is not granted.” ) ; see Nitla , 92 S.W.3d at 422 (holding that “ [e]ven if a lawyer violates a disciplinary rule, the party requesting disqualification must demonstrate that the opposing lawyer’s conduct caused actual prejudice that requires disqualification.”). Murrin
Brothers simply recognized that disqualification in shareholder derivative litigation presents a unique situation due to the parties’ alignment

. For all these reasons, we conclude that Murrin
Brothers did not tacitly overrule either the Texas Supreme Court’s own precedent regarding the irrebuttable presumption ( Thetford and Columbia Valley Healthcare Sys tem ) or this Court’s precedent that actual prejudice is not required to disqualify counsel for violating Rule 1.09, as set forth in Liebbe and Innovation Resource Solution

. Thus, we reject the characterization of Murrin10 Brothers as a tectonic shift in the law regarding whether evidence of actual prejudice is required when a party seeks disqualification of counsel pursuant to Rule 1.09.
Because we conclude that Murrin Brothers did not overrule this Court’s precedent in
Liebbe an d Innovation Resource Solution , w e further conclude that an irrebuttable presumption arose that Dunn obtained Caroline’s confidential information, and Respondent did not abuse his discretion by determining that disqualificatio n was appropriate pursuant to Rule 1.09. See In re Thetford , 574 S.W.3d at 372

- 73; Columbia Valley Healthcare Sys. , 320 S.W.3d at 824; Innov.
Res. Sol. , 2016 WL 1254058, at *4 ; see also T EX

. R. P ROF ’ L C ONDUCT R. 1.09

. Accordingly , Respondent did not abuse his discretion by implicitly concluding that Caroline was not required to provide evidence of actual prejudice and granting her motion to disqualify Trent’s counsel

. See Cerberus Capital Mgmt. , 164 S.W.3d at 382; Prudential , 148 S.W.3d at 135

- 36; Walker , 827 S.W.2d at 839; Liebbe , 2019 WL 1416637, at *6; Innov. Res. Sol. , 2016 WL 1254058, at *4 ; see also T EX

. R. P ROF ’ L C ONDUCT R. 1.09

. Further mor e , e ven if a showing of actual prejudice were required to support disqualification of counsel post

- Murrin Bro thers , we conclude that Respondent did not abuse his
discretion by impliedly find ing that Caroline proved such prejudice. When a court considers prejudice, it examines the prejudice proven by the m ovant as well as the prejudice that the nonmovant will incur as a result of disqualification of his chosen counsel. Murrin Bros. , 603
S.W.3d a t 57. Here, Caroline showed that she was prejudiced by having her former attorney cross
examine her during her deposition

. Respondent acknowledged on the record that he reviewed the deposition, and from our review of the deposition, Respondent’s implied f inding that Dunn acted
adverse ly to Caroline is strongly supported by the record. Not only did Dunn question Caroline extensively on matters pertaining to Trent’s case against BGC and BHI, but he also delved into
matters far afield from said case. After his extensive questioning of Caroline , Dunn also attempted to use her previous engagement of his services to bolster his own credibility. During the hearing on the motion to disqualify, Dunn admitted that Caroline had a conversation with him without Trent being present. Dunn claimed that this one conversation was innocuous and the only instance in which Caroline provided information to him without Trent being included in the conversation. 6 Regardless of the number of conversations or the information

6 In his brief, Trent notes that Dunn’s assertions were not controverted by Caroline. Of course, Caroline being tasked with the Hobson’s choice of either (1) disclos ing confidential communications to establish prejudice but11 exchanged, Dunn admitted that he had a confidential conversation with Caroline. Further, Dunn
disclosed another communication from Caroline w hen he shared that Caroline did not want to pursue litigation against BGC and BHI. Trent argues that because any other attorney he hires will also a ct adversely to Caroline,
she failed to demonstrate prejudice. We disagree . Dunn is not merely another at torney. Rather,
he is Caroline’s former counse l and is therefore privy to any confidential information that she shared, as opposed to an attorney who had not previously represented her. A gainst these very real prejudices, Responden t weighed the prejudice to Trent. Dunn was Trent’s chosen counsel, and having to retain new counsel does affect the litigation. We recognize that Respondent had to assign some weight to the prejudice to Trent f rom the decision to disqualify Dunn

. See id

. But Respondent is in the best position to know his court’s docket. Respondent can alleviate much of
the potential prejudice to Trent by extending the discovery deadline s to provide new counsel ample time for preparation. Respondent also knows the status of his court’s spring docket and how easily a new trial setting can be achieved if Trent’s new counsel needs more preparation time than a January 2024 trial setting allow s. Based on this record, Trent failed to show that Respondent abused his discretion by finding that Caroline was prejudiced to an extent necessary to disqualify Dunn from further representing
Trent in th e underlying action. See Prudential
, 148 S.W.3d at 135

- 36 ; Walker , 827 S.W.2d at
839.

D ISPOSITION We conclude that Trent failed to demonstrate his entitlement to mandamus relief. See
Prudential , 148 S.W.3d at 135

- 36; Fitzgerald , 429 S.W.3d at 891. Having so determined, we deny his petition for writ of mandamus.
G REG N EELEY Justice Opinion delivered November 8 , 2023

. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

then e nsure that the communicati ons were then known by her adversary or (2) rely ing upon the testimony of her former attorney who now represents her adversary and opposes her motion to disqualify him is precisely the reason the Texas Supreme Court gave for not requiring a showing of prej udice in conflict

- of

- interest cases. See In re Columbia Valley Healthcare Sys. , L.P. , 320 S.W.3d 819, 824 (Tex. 2010) (orig. proceeding)

.

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

NO VEMBER 8, 2023

NO. 12-23-00236- CV

TR ENT BROOKSHIRE , Relator V.

HON. JUDGE CLAY M. WHITE , Respondent

O RIGINAL P ROCEEDING
O N THIS DAY came to be heard the petition for writ of mandamus filed by Trent
Brookshire ; who is the relator in appellate cause number 12 -23-00236- CV and the plaintiff in
Cause No. 74544-B , pending on the docket of the County Court at Law No. 3 of Smith Co unty , Texas. Said petition for writ of mandamus having been filed herein on September 11, 2023 , and the same having been duly considered, because it is the opinion of this Court that the writ should
not issue , it is therefore CONSIDERED, ADJUDGED and ORDE RED that she said petition for writ of mandamus be, and the same is, hereby denied

.

G reg Neeley, Justice Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.