Comments on: Has the problematic departing-lawyer rule just been solved in Texas? http://www.scotxblog.com/news-and-links/has-the-problematic-departing-lawyer-rule-just-been-solved-in-texas/ Legal Issues Before the Texas Supreme Court Fri, 12 Mar 2010 17:23:30 -0600 http://wordpress.org/?v=2.9.2 hourly 1 By: Don Cruse http://www.scotxblog.com/news-and-links/has-the-problematic-departing-lawyer-rule-just-been-solved-in-texas/comment-page-1/#comment-2199 Don Cruse Thu, 29 Oct 2009 16:37:51 +0000 http://www.scotxblog.com/news-and-links/has-the-problematic-departing-lawyer-rule-just-been-solved-in-texas/#comment-2199 <p>You're right about the <em>Erie</em> question being an added complication.</p> <p>The number of certifications from the Fifth Circuit is so small that it's hard to talk meaningfully about statistics.</p> <p>By my count, there were:</p> <p>1998: 3<br /> 1999: 2<br /> 2000: 0<br /> 2001: 1<br /> 2002: 0<br /> 2003: 1<br /> 2004: 3<br /> 2005: 3<br /> 2006: 3<br /> 2007: 2<br /> 2008: 0<br /> 2009: 1 (so far)</p> <p>There was a pretty dense cluster in 2004 and 2005, with five certifications coming in less than one calendar year. That was enough to create a lasting impression that there were many more certified questions than before.</p> <p>The <a href="http://docketdb.com/dockets/09-0387" rel="nofollow"><em>Severance v. Patterson</em> case</a> is the only certified question still open in the Texas Supreme Court.</p> You’re right about the Erie question being an added complication.

The number of certifications from the Fifth Circuit is so small that it’s hard to talk meaningfully about statistics.

By my count, there were:

1998: 3
1999: 2
2000: 0
2001: 1
2002: 0
2003: 1
2004: 3
2005: 3
2006: 3
2007: 2
2008: 0
2009: 1 (so far)

There was a pretty dense cluster in 2004 and 2005, with five certifications coming in less than one calendar year. That was enough to create a lasting impression that there were many more certified questions than before.

The Severance v. Patterson case is the only certified question still open in the Texas Supreme Court.

]]> By: Kendall Gray http://www.scotxblog.com/news-and-links/has-the-problematic-departing-lawyer-rule-just-been-solved-in-texas/comment-page-1/#comment-2198 Kendall Gray Thu, 29 Oct 2009 15:11:52 +0000 http://www.scotxblog.com/news-and-links/has-the-problematic-departing-lawyer-rule-just-been-solved-in-texas/#comment-2198 <p>Interesting thought on certification. My anecdotal perception is that they are doing that more frequently, but do you know whether it is actually the case?</p> <p>Not knowing the Mindprint facts, might the Fifth Circuit avoid the question altogether by saying (as they did some time back in a case that no longer pops directly to mind) that the Texas Rules are merely advisory when considering conflicts in federal court. In the case I am remembering, they disqualified a lawyer for suing a current client in a matter that was not "substantially related," an action that was permitted under the Texas rules but evidently not in the Fifth Circuit.</p> Interesting thought on certification. My anecdotal perception is that they are doing that more frequently, but do you know whether it is actually the case?

Not knowing the Mindprint facts, might the Fifth Circuit avoid the question altogether by saying (as they did some time back in a case that no longer pops directly to mind) that the Texas Rules are merely advisory when considering conflicts in federal court. In the case I am remembering, they disqualified a lawyer for suing a current client in a matter that was not “substantially related,” an action that was permitted under the Texas rules but evidently not in the Fifth Circuit.

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