An appeals court decision means Houston’s Martin, Disiere, Jefferson & Wisdom may go back to representing the Texas Windstorm Insurance Association on consolidated Hurricane Ike litigation in Galveston County.

A panel of Houston’s 1st Court of Appeals conditionally granted a mandamus on Nov. 7, ordering 212th District Judge Susan Criss of Galveston to vacate a Feb. 5 order disqualifying Martin Disiere and partner Christopher Martin from Ike work for the association.
Judge Michael Massengale, joined by Judge Jane Bland, concluded that Criss erred in applying the law to the facts and by ordering the “blanket disqualification” of Martin and his law firm.
Judge Terry Jennings dissented, writing that the majority “substitutes its factual determinations in place of those made by the respondent trial court,” does not follow the “well-settled standard” for review and “misapplies the governing law.”
Dale Wainwright, a Bracewell & Giuliani partner in Austin and a former Texas Supreme Court justice, argued for the Texas Windstorm Insurance Association (TWIA). He said the panel’s decision affirmed two important principles: The disciplinary rules for attorneys are intended to protect clients, not lawyers, and “it continues to be difficult for an adverse party in litigation to disqualify the other side’s lawyers.”
“This was not a case where the party wasn’t happy with the lawyers. It was the other side’s lawyers trying to get rid of TWIA’s lawyers,” Wainwright said.
Jennifer Hogan, a partner in Hogan & Hogan in Houston who argued the appeal for the real-parties-in-interest did not immediately return a message for comment.
The real-parties-in-interest, who maintained Criss’ disqualification order was justified, include Galveston lawyer Craig Eiland and his firm; the city of Santa Fe, Texas; members of a purported class of plaintiffs suing TWIA in Galveston County over Hurricane Ike claims; and the Plaintiffs’ Steering Committee in the Hurricane Ike litigation.
The 1st Court heard oral arguments on April 17.

Hurricane Ike Litigation

According to its Feb. 12 petition for a writ of mandamus, the TWIA hired Martin Disiere in August 2012 to represent it and serve as statewide coordinating counsel for hundreds of Hurricane Ike-related suits filed against it by insureds. However, the city of Santa Fe filed a motion to disqualify Martin and his law firm on Dec. 11, 2012, alleging Martin gave Eiland legal advice in 2011 on Ike insurance claims, creating a conflict of interest.

The TWIA alleged in its petition that Martin simply answered a question posed by Eiland about the industry practice and custom in connection with payment of insurance claims, and Martin did not even bill Eiland for that advice.
The real-parties-in-interest alleged in their response that Criss had evidence to grant the motion to disqualify and that Martin and his firm had an attorney-client relationship with Eiland and his firm.
In her disqualification order in In Re: Hurricane Ike Litigation, Criss found Martin Disiere and Martin entered into an attorney/client relationship with Eiland and his firm, and Martin and Martin Disiere’s representation of the TWIA in the class action violated the Texas Disciplinary Rules of Professional Conduct.

Exacting Standard

But the 1st Court majority concluded that the mandamus record was insufficient to support the trial court’s conclusions that disciplinary rules were violated.
“In light of the severity of the remedy of attorney disqualification and the Supreme Court’s admonitions that such rulings must strictly adhere to an exacting standard, we conclude that the court erred in applying the law to the facts and by ordering that blanket disqualification of Martin and MDJW from representing TWIA in all Galveston County Ike cases,” Massengale wrote.
In his dissent, Jennings wrote that Criss did not abuse her discretion.
“In reaching its contrary conclusion, the majority substitutes its factual determinations in place of those made by the respondent trial court. Thus, the majority not only misapplies the governing law, it fails to correctly apply and follow the well-settled standard for reviewing the trial court’s challenged order,” he wrote, adding that the majority usurps the power of the trial court.
“Thus, the majority has committed an error of such importance to the jurisprudence of the state that it should be corrected,” Jennings wrote.