UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ADMIRAL INSURANCE COMPANY,

ET AL.,

Plaintiffs,

VS.

HEATH HOLDINGS USA, INC.,

ET AL.,

Defendants.

)

)

)

) CIVIL ACTION NO.

)

) 3:03-CV-1634-G

)

)

)

)

)

MEMORANDUM OPINION AND ORDER

Before the court is the motion of the plaintiff Caliber One Indemnity

Company (“Caliber”) to disqualify the law firm Wilson, Elser, Moskowitz, Edelman

& Dicker, L.L.P. (“WEMED”) from representing the defendants Clair Odell

Insurance Agency, LLC d/b/a Clair Odell Group and Mellon Insurance Agency, Inc.

(collectively “COG”) in this case. For the reasons stated below, Caliber’s motion to

disqualify WEMED is granted.

I. BACKGROUND

This action was initially filed by Senior Living Properties (“SLP”) against

certain insurance carriers, including Caliber, in connection with SLP’s bankruptcy

 

 Case 3:03-cv-01634-G Document 201 Filed 08/09/05 Page 1 of 12 PageID 2714
- 2 -

case. Caliber One Indemnity Company’s Motion to Disqualify [WEMED] and Brief

in Support (“Motion to Disqualify”) at 2. “Caliber is an insurance carrier which

issued insurance policies to SLP and had filed an action against SLP seeking to

rescind those policies prior to the filing of the Bankruptcy Case.” Id. at 2-3. In that

action, Caliber asserted various claims against SLP and COG, among others. Id. at 3. 

Pursuant to a settlement agreement, Caliber transferred and assigned to SLP all of its

claims and causes of action against COG and others relating to the insurance policies

Caliber had issued to SLP. Id. 

While the above matters were pending, SLP confirmed a plan of reorganization

in bankruptcy and established the Senior Living Properties LLC Trust (the “SLP

Trust”), which, among other functions, pursued all claims of SLP regarding its

disputed insurance policies. Id. Pursuant to the plan of reorganization, SLP

transferred its rights under the settlement agreement between it and Caliber to the

SLP Trust. Id.

Prior to SLP’s bankruptcy filing, WEMED -- through its Dallas office --

defended SLP in various personal injury and insurance litigation. Id. at 4-5. 

WEMED continued to represent the SLP Trust in these actions after it was created

through SLP’s bankruptcy filing. Id. 

WEMED represents COG in this action. [WEMED]’s Response and Brief in

Opposition to Plaintiff’s Motion to Disqualify (“Response”) at 1. Michael Cawley

 

 Case 3:03-cv-01634-G Document 201 Filed 08/09/05 Page 2 of 12 PageID 2715
- 3 -

(“Cawley”) is counsel of record for COG in this action. Id. Cawley has represented

COG for over ten years. Id. Cawley became a partner at WEMED -- in its

Philadelphia office -- on April 1, 2005. Id.

On May 13, 2005, WEMED was disqualified from representing COG in a

related case. Senior Living Properties LLC Trust v. Clair Odell Insurance Agency LLC, No.

3:04-CV-0816-G, Memorandum Opinion and Order, filed May 13, 2005. In that

action, the court determined that WEMED’s former representation of SLP and its

representation of COG in that case were substantially related, requiring

disqualification. Id. at 8-10. 

II. ANALYSIS

A. Relevant Ethical Canons

In determining whether disqualification of an attorney is appropriate, this

court should consider the following ethical canons: (1) the ABA Model Rules of

Professional Conduct (the “Model Rules”), (2) the Texas Disciplinary Rules of

Professional Conduct (the “Texas Rules”), and (3) the local rules of the Northern

District of Texas (the “Local Rules”). Federal Deposit Insurance Corporation v. United

States Fire Insurance Company, 50 F.3d 1304, 1312 (5th Cir. 1995); Advanced Display

Systems, Inc. v. Kent State University, No. 3-96-CV-1480-BD, 2001 WL 1524433 at

* 4 (N.D. Tex. Nov. 29, 2001) (Kaplan, Magistrate J.). The Model Rules embody

“the national standards utilized [in] this circuit in ruling on disqualification motions.” 

 

 Case 3:03-cv-01634-G Document 201 Filed 08/09/05 Page 3 of 12 PageID 2716
- 4 -

United States Fire Insurance Company, 50 F.3d at 1312. Consideration of the Texas

Rules is relevant because the Local Rules and the Texas Rules are virtually identical. 

See United States Fire Insurance Company, 50 F.3d at 1312.

Model Rule 1.7(a) provides, in relevant part:

A concurrent conflict of interest exists if: 

(1) the representation of one client will be

directly adverse to another client; or 

(2) there is a significant risk that the

representation of one or more clients will be

materially limited by the lawyer’s

responsibilities to another client [or] a former

client . . . . 

Model Rule of Professional Conduct 1.7(a). In certain circumstances, a client may

consent to representation even though a conflict of interest exists. Model Rule

1.7(b). According to the Model Rules,

[a] lawyer who has formerly represented a client in a

matter shall not thereafter represent another person in the

same or a substantially related matter in which that

person’s interests are materially adverse to the interests of

the former client unless the former client gives informed

consent, confirmed in writing.

Model Rule 1.9(a). The Model Rules impute conflicts under both Rules 1.7 and 1.9

to all lawyers associated in a firm with the conflicted attorney. Model Rule 1.10(a). 

In most circumstances, a client may consent to representation by the firm,

notwithstanding the existence of a conflict. Model Rule 1.10(c). 

 

 Case 3:03-cv-01634-G Document 201 Filed 08/09/05 Page 4 of 12 PageID 2717
- 5 -

Similarly, the Texas Rules provide:

a lawyer shall not represent a person if the representation

of that person:

(1) involves a substantially related matter in

which that person’s interests are materially

and directly adverse to the interests of

another client of the lawyer or the lawyer’s

firm; or

(2) reasonably appears to be or become

adversely limited by the lawyer’s or law firm’s

responsibilities to another client. . . .

Texas Rule 1.06(b). Further, “a lawyer who personally has formerly represented a

client in a matter” may not, without prior consent, represent another person in “the

same or a substantially related matter.” Texas Rule 1.09(a)(3). Like the Model

Rules, the Texas Rules provide that conflicts are imputed to lawyers associated in a

firm. Texas Rules 1.06(f), 1.09(b).

B. Disqualification - Generally

The Fifth Circuit has stated that “disqualification of counsel ‘is an extreme

remedy that will not be imposed lightly.’” McCuin v. Texas Power & Light Co., 714

F.2d 1255, 1262-63 (5th Cir. 1983) (citing Duncan v. Merrill Lynch, Pierce, Fenner &

Smith, 646 F.2d 1020, 1025 n.6 (5th Cir.), cert. denied, 454 U.S. 895, 102 S.Ct. 394,

70 L.Ed.2d 211 (1981)). However, the Fifth Circuit has applied the admonition that

attorneys should “avoid even the appearance of impropriety.” In re Dresser Industries,

 

 Case 3:03-cv-01634-G Document 201 Filed 08/09/05 Page 5 of 12 PageID 2718
- 6 -

Inc., 972 F.2d 540, 543 (5th Cir. 1992) (citing canon 9 of the American Bar

Association Model Code of Professional Responsibility). 

“A party seeking to disqualify opposing counsel on the ground of former

representation must establish two elements: 1) an actual attorney-client relationship

between the moving party and the attorney [it] seeks to disqualify and 2) a

substantial relationship between the subject matter of the former and present

representations.” In re American Airlines, Inc., 972 F.2d 605, 614 (5th Cir. 1992)

(citing Johnston v. Harris County Flood Control District, 869 F.2d 1565, 1569 (5th Cir.

1989)), cert. denied sub nom., Northwest Airlines, Inc. v. American Airlines, Inc., 507 U.S.

912 (1993). “[A] substantial relationship may be found only after ‘the moving party

delineates with specificity the subject matters, issues and causes of action’ common to

prior and current representations and the court engages in a ‘painstaking analysis of

the facts and precise application of precedent.’” Id. (citing Duncan v. Merrill Lynch,

Pierce, Fenner & Smith, 646 F.2d 1020, 1029 (5th Cir.), cert. denied, 454 U.S. 895

(1981)). The burden of establishing the substantial relationship between the prior

and current representations is on the party moving for disqualification. Id. A

movant’s successful establishment of a substantial relationship between the current

and prior representation creates an irrebuttable presumption that relevant

confidential information was disclosed during the prior representation. Id.

 

 Case 3:03-cv-01634-G Document 201 Filed 08/09/05 Page 6 of 12 PageID 2719
- 7 -

In addition to the substantial relationship test, “[the Fifth Circuit has]

indicated that a former client could also disqualify counsel by showing that his former

attorney possessed relevant confidential information in the manner contemplated by

Rule 1.09(a)(2).” American Airlines, 972 F.2d at 615. A movant may disqualify

counsel by “pointing to specific instances where it revealed relevant confidential

information regarding its practices and procedures.” Id. (citing Duncan, 646 F.2d at

1032). Comment 4B to Texas Rule 1.09 provides that a “substantially related”

matter, while not defined by the Rule, “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. It thus largely overlaps the prohibition contained

in paragraph (a)(2) of this Rule.” Texas Rule 1.09(a)(3), Comment 4B. 

C. WEMED’s Former Representation of SLP

In its motion to disqualify, Caliber argues that WEMED’s former

representation of SLP precludes its representation of COG in this matter “[b]ecause

the SLP Trust owns and is the successor-in-interest of . . . Caliber’s claims against

COG in this action.” Motion to Disqualify at 1-2. Caliber further asserts that

“WEMED received confidential information from SLP and its representatives

regarding the existence and scope of insurance coverage as well as the nature, scope

and value of the personal injury claims.” Id. at 5. According to Caliber, “WEMED

 

 Case 3:03-cv-01634-G Document 201 Filed 08/09/05 Page 7 of 12 PageID 2720
- 8 -

also received confidential information from Caliber about claims for which SLP made

claims against the Caliber policies, both before and during the Bankruptcy Case.” Id. 

In response, WEMED avers that SLP is not the real party in interest in this

case, and that WEMED never represented Caliber, the real party in interest. 

Response at 4-6 (“The inescapable fact which torpedoes Caliber’s Motion is that

WEMED never represented Caliber in this or any related litigation.”). WEMED

further argues that “[n]o relevant confidential information was possessed by

WEMED in the manner contemplated by Texas . . . Rule 1.09(a)(2).” Id. at 11. 

In reply, Caliber offers evidence that WEMED attorneys were privy to

confidential information regarding the Bankruptcy Case. Caliber One Indemnity

Company’s Reply Brief at 8-9. The evidence is an email from WEMED attorney Lee

Cameron in reply to an email sent by Caliber’s attorney, Lynette Warman. See

Supplemental Appendix [for Plaintiff’s Motion to Disqualify] at 390. The email

states:

In personal injury matters the law allows a client to

maintain the privilege even when sharing privileged

information with the [insurance] carrier. The privilege,

however, belongs to SLP, not the carrier. As a result, only

SLP can waive it. The release of these reports to the

plaintiffs’ bar would greatly hinder our ability to defend

SLP in pending and future matters. Among other things,

the reports detail the type of facts that bother us (and

hence raise the settlement value), provides our strategy for

overcoming problematic facts, and provides our comments

(pro and con) on our witnesses. The information in these

reports is highly confidential. I suggest that y’all strongly

 

 Case 3:03-cv-01634-G Document 201 Filed 08/09/05 Page 8 of 12 PageID 2721
- 9 -

consider emergency injunctive relief to prevent disclosure

. . . .

Id. The reports that the email refers to appear to be personal injury case evaluations

prepared by Mr. Cameron. Id. In response to Caliber’s arguments regarding the

above email, WEMED asserts that the information discussed in the email above is

not relevant to this case. [WEMED]’s Sur Reply Brief in Opposition to Caliber One’s

Motion to Disqualify (“Surreply”) at 6. Rather, WEMED asserts that the email dealt

with personal injury matters, and the issues in this case involve “whether COG and

the other defendants made any misrepresentations in the procurement of insurance

coverage.” Id. Caliber, however, asserts that “WEMED lawyers acquired knowledge

from SLP and the SLP Trust about the valuation of personal injury settlements for

which Caliber seeks recovery from COG in this action.” Motion to Disqualify at 9. 

Texas Rule 1.09 “forbids a lawyer to appear against a former client if the

current representation in reasonable probability will involve the use of confidential

information” gained from the prior representation. American Airlines, 972 F.2d at

615. As discussed above, an attorney may be disqualified if he possesses confidential

information obtained during prior representation, and such information may be used

to the former client’s disadvantage. Abney v. Wal-Mart, 984 F. Supp. 526, 528 (E.D.

Tex. 1997). 

If WEMED received relevant confidential information during its

representation of SLP or the SLP Trust, and this information may be used to the SLP

 

 Case 3:03-cv-01634-G Document 201 Filed 08/09/05 Page 9 of 12 PageID 2722
- 10 -

Trust’s disadvantage, WEMED should be disqualified. It is not pivotal that WEMED

did not directly represent Caliber. If the information garnered during the first

representation can be used to the SLP Trust’s disadvantage via WEMED’s

representation of COG, that is a sufficient conflict of interest to warrant

disqualification. Here, Caliber assigned its rights in the litigation to SLP, who later

assigned its rights in the litigation to the SLP Trust. As it stands, the SLP Trust is

entitled to 87.5 percent of any recovery against COG. Thus, if WEMED were to use

confidential information to lessen or negate any recovery against COG, it is clear that

the SLP Trust would be disadvantaged. However, as WEMED notes, see Surreply at

6, the confidential information must be relevant to the litigation at hand. Abney, 984

F. Supp. at 529-30. The mere fact that WEMED may have gained confidential

information, in general, is not sufficient to warrant disqualification. 

Hence, the critical issue here is whether WEMED, in the course of its

representation of SLP and the SLP Trust, received confidential information which is

relevant to the instant case. Caliber asserts that the email from Lee Cameron of

WEMED establishes that WEMED received confidential information regarding

certain personal injury claims which form a portion of the recovery that Caliber seeks

in this action. WEMED relies on the affidavit of Cameron in which he states:

During the course of [WEMED’s] representation of SLP

an[d]/or SLP Trust, I do not believe that WEMED-Dallas

received any confidential with regard to the effect of

coverage issues, if any, on the value of the personal injury

 

 Case 3:03-cv-01634-G Document 201 Filed 08/09/05 Page 10 of 12 PageID 2723
1 Local Rule 7.1(i) requires parties who rely on documentary evidence,

such as an affidavit, to support or oppose a motion to attach that evidence in a

separate appendix. The Cameron affidavit was not included in WEMED’s appendix

to its response. However, the affidavit was included in its appendix to its response to

the motion to disqualify in the case styled Senior Living Properties LLC Trust v. Clair

Odell Insurance Agency LLC, No. 3:04-CV-0816-G, Northern District of Texas.

- 11 -

claims, and/or insurance notice issues, if any, pertaining to

the personal injury claims. The only information that I

recall regarding any coverage issues was information which

was publicly available, such as the public knowledge that

SLP’s insurers had filed recission [sic] actions. 

Surreply at 6.1

 However, the email indicates that WEMED was privy to confidential

information that was shared between SLP, or the SLP Trust, and Caliber. 

Accordingly, it appears likely that WEMED received confidential information

regarding coverage issues, and personal injury actions involving Caliber. Such issues

may become relevant in this action, as Caliber is seeking recovery for amounts paid

under its policies and in settlement of these personal injury actions.

In light of the prior and current relationships among WEMED, Caliber, SLP,

and the SLP Trust, WEMED’s representation of COG in this action creates an

appearance of impropriety. Moreover, it appears that WEMED was likely privy to

confidential information which is relevant to the issues in the present case. Such

information can possibly be used to the disadvantage of WEMED’s former client, the

 

 Case 3:03-cv-01634-G Document 201 Filed 08/09/05 Page 11 of 12 PageID 2724
2 In a letter from Cawley, the court was assured that such a determination

will not alter the schedule of this case, due to COG’s acquisition of new attorneys in

the related case. See Letter from Michael Cawley, dated June 20, 2005.

- 12 -

SLP Trust and/or SLP. Accordingly, disqualification of WEMED from its

representation of COG in this case is required.2

III. CONCLUSION

For the reasons discussed above, Caliber’s motion to disqualify is GRANTED. 

Accordingly, WEMED is DISQUALIFIED from representing COG in this action.

SO ORDERED.

August 9, 2005.

 

 Case 3:03-cv-01634-G Document 201 Filed 08/09/05 Page 12 of 12 PageID 2725