### IN THE TENTH COURT OF APPEALS
No. 10
- 14
- 00206
- CV
IN THE MATTER OF THE MARRIAGE OF KENNETH BEAIRD AND E LIZABETH BEAIRD ,

From the 13th District Court Navarro County, Texas Trial Court No. D12
- 21779
- CV

ORDER
Appellant Elizabeth Beaird is appealing from the final decree of divorce between her and Appellee Kenneth Beaird . In her notice of appeal, she indicates her intent to challenge an interlocutory order disqualifying her trial counsel, Afton Jane Izen, which became final when the trial court signed the final decree of divorce. Kenneth has filed a motion to disqualif y Elizabeth’s appellate counsel, Joe Izen, Jr., alleging that Izen’s prior representation of him in a substantially related matter
creates a conflict of interest that he has not waived. 1

1 In her response to Kenneth’s motion to disqualify her appellate counsel, Elizabeth makes several arguments for why we should reverse the trial court’s order disqualifying her trial attorney. O ur analysisIn re Marriage of Beaird Page 2

Texas Disciplinary Rule of Professional Conduct 1.09 states in releva nt part: “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 ... if it is the same or a substantially related matter.” T EX

. D IS CIPLINARY R ULES
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 2013) ( T EX

. S TATE B AR R. art. X, § 9). Although the term “substantially related” is not defined by the Rule, “it primarily involves situations where a lawyer could have acquired confidential information concerning a prior client that could be used either to that prior client’s disadvantage or for the advantage of the lawyer’s current client or some other person.” Id. cmt. 4B. “Confidential info rmation” includes both “privileged
information ” and “unprivileged client information.” Id. 1.05(a). “Unprivileged client information” includes “all information relating to a client or furnished by the client, other than privileged information, acquired b y the lawyer during the course of or by reason of the representation of the client.” Id. Kenneth’s affidavit, attached to his reply to Elizabeth’s response to his motion to disqualify, states as follows: In May 1996, he consulted with Tommy Westmoreland at the Law Office of Joe Izen, Jr., about filing a divorce. He hired Izen’s office to assist him. They drafted a petition, waiver of service for his wife to sign, and the final decree of divorce. Kenneth filed the petition pro se in May 1996 in In the M atter of the Marriage of Kenneth James Beaird and Vennita Kaye Beair d , Cause No. 96

- 00

- 06480

- CV. When

and ruling in this o rder is limited, however, to K enneth’s motion to disqualify Elizabeth’s appellate counsel.In re Marriage of Beaird Page 3

consulting with Izen’s office, he divulged certain information about his property. That property is largely the same property at issue in this divorce. He has not waived the
conflict of interest. Elizabeth argues that this appeal is not the “same or a substantially related matter” to Kenneth’s previous divorce proceeding. Specifically, Elizabeth claims that
Kenneth has not established or indicated how Izen’s continued participation in this appeal would violate any alleged confidences that Kenneth imparted to him in the prior proceeding. Elizabeth asserts that the mere fact that Kenneth owned some of the same separate property during his marriage to he r that he owned during earlier marriages is not enough. But when a lawyer works on a matter, there is an irrebuttable presumption that the lawyer obtained confidential information during the representation. In re Guar. Ins. Servs., Inc. , 343 S.W.3d 130, 1 34 (Tex. 2011) (orig. proceeding). And Elizabeth does not challenge Kenneth’s statement that Izen’s firm formerly assisted Kenneth in filing a pro

se petition in a previous divorce proceeding. Izen therefore could have acquired
confidential information c oncerning Kenneth during the previous divorce proceeding that could be used either to Kenneth’s disadvantage or for Elizabeth’s advantage in this appeal from the final decree of divorce between Kenneth and Elizabeth. We thus conclude that this proceeding is substantially related to Kenneth’s previous divorce proceeding. Kenneth’s motion to disqualify Elizabeth’s appellate counsel, Joe Izen, Jr., is
gran ted. All other pending motions are dismissed as moot.In re Marriage of Beaird Page 4

Because of the disqualification of Elizabeth’s appellate counsel, her appellant’s brief is due 60 days from the date of this order.

PER CURIAM Before Chief Justice Gray, Justice Davis , and Justice Scoggins (Chief Justice Gray dissenting with a note)* Order issued and filed January 22, 2015 Do not publish

* (Chief Justice Gray dissents. A separate opinion or order will not follow. He notes, however, that the alleged disclosure of confidential inf ormation being imputed to Joe Izen, Jr. is from a prior divorce almost 20 years ago.)