SCOTXblog

… a mind’s inner workings are often opaque and its contents not easily partitioned.

A disqualification case with some cautions for appellate lawyers

IN RE ADEEL ZAIDI, A.K. CHAGLA AND PRESTIGE CONSULTING D/B/A TURNAROUND MANAGEMENT GROUP, No. 24-0245

Opinion of the Court

Earlier this month, the Texas Supreme Court issued an attorney-disqualification opinion. The court’s guidance — and its strict rule of disqualification — actually applies to any law firm big enough to employ non-lawyer support staff.

This opinion might make you read Texas e-filing notices a little more carefully. (And the fact pattern here might make you wish that your firm’s lawyers all knew how to make e-filings themselves, rather than delegating that task to staff.)

What led this law firm to be disqualified

Lawsuits can tend to linger. This case began in 2009, and at that time the plaintiff had two law firms. One of those firms employed a legal assistant who, quite naturally, came into contact with confidential materials. In 2011, that legal assistant moved to a new law firm.

The case continued to a bench trial. The defendant’s side hired an appellate lawyer, who ultimately won a reversal and remand for a new trial in 2016. Around that time, the defendant’s appellate lawyer joined a larger law firm — which was, unluckily, the same firm that had hired this legal assistant.

At that point, there was a conflict. The legal assistant had, five years after starting a new job, suddenly become “side-switching legal staff.” On this record, the conflict did become more than theoretical. The opinion tells us that, from 2017 to 2022, the legal assistant did some work on this case “on thirteen occasions,” including some “limited” secretarial services when a lawyer’s regular assistant was unavailable. Crucially to how things played out here, the legal assistant also helped with the mechanics of making two e-filings for this case in 2022. Those standard Texas e-filing notices listed the legal assistant’s name as the one who made the filing on the attorney’s behalf.

In January 2023, when looking back through some of the e-filings from 2022, lawyers on the plaintiff’s side recognized the name of this legal assistant. They filed a motion to disqualify in March 2023.

The trial court granted disqualification. When doing so, the trial court rejected a waiver argument based on the idea that too much time had passed between the 2022 e-filing notices and the March 2023 motion to disqualify. The court of appeals upheld the disqualification, with a one-sentence mandamus denial. The Texas Supreme Court set the mandamus petition for oral argument, which was heard in October. The Court ultimately upheld the disqualification.

“a mind’s inner workings are often opaque and its contents not easily partitioned”

The Court called the legal rule here “longstanding” and “bright-line.” “[S]ide-switching legal staff requires disqualification unless minimal prophylactic measures were undertaken to safeguard prior client confidences from the risk of inadvertent disclosure.” The test has two prongs. It requires “both an instruction and other reasonable steps” to reduce the risk of the side-switching legal staff becoming involved in the matter. (page 20)

The defendants argued in part that “an admonishment would have had little effect when the legal assistant was hired because the conflict did not arise until years later.” The Court disagreed. Its reason was less practical than aspirational. “In our experience, paralegals, secretaries, and other legal assistants aiding the bar are, by and large, commendably diligent, respectful, and ethical. … We are confident most legal staff, when admonished, will faithfully comply to the best of their abilities and not work on conflicted matters, including those that arise years later.” (page 12)

The Court defended having a rigid bright-line rule about admonitions by pointing to the limits of human memory. Once years have passed, it may be difficult to know what information a staff member may have been exposed to. In contrast to mishandled paper documents — for which it might be theoretically possible to discern precisely what information was involved — “a mind’s inner workings are often opaque and its contents not easily partitioned.” (page 19)

“forgetful, inattentive, or even potentially rogue nonlawyers”

The test has two necessary steps. There must be “both an instruction and other reasonable steps” to prevent cross-contamination. (page 20) Without proof of that initial step of the “instruction” or admonition, disqualification is required. No “reasonable steps” can salvage the situation.

In a footnote, the Court explains that, in combination, these two prongs are meant to:

reduce the risk of disclosure to an acceptable level by addressing two types of nonlawyers. Generally speaking, the first prong is directed at ethical nonlawyers who will comply with instructions while the fact-intensive second prong is geared toward forgetful, inattentive, or even potentially rogue nonlawyers. … However, an ethical nonlawyer may be forgetful or careless at times — such is the lot of human nature — and other reasonable steps provide guardrails to support an instruction. And even a rogue nonlawyer may be more likely to abide if admonished. Thus, both prongs are necessary, but neither is sufficient on its own to satisfy the test. (page 20 note 63)

E-filing notices are notices

The easy practical takeaway is: Admonish early and often. Admonish newly hired staff. Admonish staff, again, when your firm brings on new counsel who carry their own bundle of conflicts. Send the memo; save the email somewhere safe. Unless you can establish that you met the first prong with an admonition (at some relevant time), the reasonableness of your other protocols will not matter.

The other takeaway may be that e-filing notices are notices, of a sort.

This conflict surfaced because of some e-filing notices. But those same notices almost — and on a different record might have — unraveled the disqualification argument by waiver.

The defendant argued that these notices should have put the other side on notice. “Under the defendants’ theory, the plaintiffs were on notice, as a matter of law, nearly a year earlier when the case documents with the e-filing notifications listing the legal assistant’s name were filed in March 2022. If so, an unexplained one-year delay before filing the disqualification motion would be unquestionably dilatory.” (page 22)

The Court held this mandamus record was not strong enough to establish waiver as a matter of law. And that standard of review was pivotal to the Court’s explanation of its decision. In general, “[a] disputed fact issue on intention precludes mandamus relief, as ‘we may not make factual determinations in mandamus proceedings.’” (page 23) The explanations offered here were reasonable enough, at least as filtered through the standard of review. That said, it’s easy to imagine slightly different facts — such as if the side-switching staff member had worked for the other side’s current lawyers, rather than a firm that withdrew more than a decade ago — where a trial court might easily find that e-filing notices like these do start the clock for waiver.

IOPs vs. “inferred” operating procedures

For a number of years, the Texas Supreme Court published a set of “internal operating procedures” (IOPs) on its website, with a detailed look at the internal process. The most recent update to that document (of which I am aware) was in 2018.¹

Having published that document did not stop the Court from experimenting. As members of the Court had new ideas, or prevailed on their colleagues to revisit older ideas, the actual practice at the Court would change in ways not reflected in the IOPs. (Eventually, the Court removed that 2018 document from its website.)

My own CLE presentations would typically have a “show and tell” section, with unusual procedural things I had seen in the SCOTX docket. Members of the Court would sometimes be asked about those at panel discussions, even at the same conference. The result was a kind of oral folk knowledge about the Court’s practices. At least once, something was so unusual that it broke through to the legal press even before a conference. That was the April 2022 decision by the Court to grant a petition for review based on the petition alone, before requesting merits briefs.²

That turned out to foreshadow the new petition rules, effective January 2026.³

An official “summary” of the new rules

When the Court issued its new petition rules, it attached a memo. That struck me as very unusual; I’m not aware of the Court previously using its rule-making process to issue this kind of memo to the bar.

In many ways, this seems to be a bullet-pointed version of the old Internal Operating Procedures. It’s the prose of a memo, not the poetry of a rule. The memo does discuss the new petition rules to which it was attached; what it says about those should be read with interest. But it goes much farther. It puts those rules in a larger context, talking about internal court procedures like what number of justices are needed to vote for different outcomes, and the Court’s expectations about how motions to extend time will work under the new system.

Here’s the memo. The annotations in yellow are mine (not the Court’s), and they highlight some of the changes that may be of particular interest to Texas appellate lawyers.

This “summary” doesn’t freeze the Court’s process in place.

We don’t know how durable this guidance will be. I doubt the Court knows the answer to that question yet, either. The memo is simultaneously the most and least formal guidance yet issued by the Court. It’s part of the formal rule-making process, baked into an administrative order signed by all nine justices. But that order says that the “summary document … is not a part of the rules.” Misc. Docket No. 25-9104 ¶5 (Dec. 23, 2025) And the memo itself says it is for our benefit, as members of the public and bar, but was “not intended to bind the Court.” (see ¶1).

But for now, it’s a remarkably clear statement of how the Court expects its new petition rules to work.

New petition rules at the Texas Supreme Court

The big news, really, is that the Texas Supreme Court dramatically changed its petition process in January.

Under the old system, the Court’s discretionary review proceeded in two steps. First, the parties would file a petition seeking to persaude the Court to show some interest. Then the Court would request full merits briefing from both sides. Only after those months of briefing would the Court decide whether to grant review or not.

The new process in Texas is loosely modeled on the petition for certiorari process at the U.S. Supreme Court. But it’s also uniquely different. Each time I read through the redline of the new petition rules, I see some new detail that I’d like to explore. I’ll write about some of those later.

My court-tracking website is being updated to fit this new petition process

The big news, for me, is that I’ve just updated my docket-tracking website to follow cases as they move through the new process.

The easiest place to see the change is the “Snapshot of the Docket” chart, which has been updated to reflect the different paths that petitions can take through the discretionary-review process — under the new rules and the old.

By looking across, you can see where the Court stands in this transition. The new petitions are still early in their journey, and the older petitions (those filed before January 1st) have either been denied or are moving forward. On this chart, each of these groups is clickable, so you can drill down to see the specific cases I’m tracking at each stage.

As of today, the Court has not just yet announced any grants of review for these new petitions.¹ And it has also not yet taken advantage of its option to still request merits briefing, such as if it is considering a case for a possible per curiam. That’s just a snapshot in time. The up-to-date version of that chart lives here.

The Court did hold an internal conference this week, so it’s possible we will see the first set of those grant decisions as soon as this Friday.²

With the Texas appellate websites still down, I wanted to provide a blog post that collects in one place all the filings in the case being argued today in the Texas Supreme Court about mail-in voting, and, specifically, what flexibility the statute permits county officials in determining “disability” in light of the coronavirus.

There are two currently pending cases in the Texas Supreme Court on this topic, only one of which is (technically) set for argument today.¹ Today’s case is docket 20-0394, which is the Attorney General’s request for a writ of mandamus from the Texas Supreme Court directly compelling various county officials to act.

These briefs are arranged in the spirit of “You can’t tell the players without a program.”

Relator

The party seeking relief in the Mandamus Petition is “The State of Texas,” being represented by the Attorney General.

The AG also filed a short letter about the federal case in which an injunction was issued yesterday.

Real parties in interest

The AG brings this action against five county officials, each of whom has filed a response to the mandamus petition:

• Response Brief of Dana DeBeauvoir, in her official capacity as Travis County Clerk

• Response Brief of Remi Garza, in his official capacity as Cameron County Elections Administrator

• Response Brief of Toni Pippins-Poole, in her official capacity as Dallas County Elections Administrator

• Response Brief of Diane Trautman, in her official capacity as Harris County Clerk

• Response Brief of Lisa Wise, in her official capacity as El Paso County Elections Administrator

Attempted intervenors

Two sets of groups have sought to “intervene” in the case. (Normally, this type of intervention might happen in a district court, but the AG brought this action in a way that bypassed the district court.)

• Motion to Intervene by the Texas Democratic Party

• Motion to Intervene by League of Women Voters, et al. (the “Price Intervenors”)

The proposed intervenors also filed this joint mandamus response brief addressing the merits of the case.

The State filed a brief opposing these interventions. The Court has stated that it will treat these filings as being amicus curiae submissions rather than a formal intervention.

Amicus groups

Various groups and individuals have filed amicus briefs in this case. They include (as of the time of this blog post):

• Texas Public Policy Foundation (May 13)

• An emailed amicus submission from a citizen in Houston (May 14)

• Honest Elections Project (May 15)

• McCaffity for Congress (May 15)

• A group of Medical Doctors (May 19)

• A group of Healthcare Professionals and Institutions (May 19)

• A group including the National Medical Association

Argument day itself

The official submission schedule indicates that the State’s side will be argued by the Solicitor General, Kyle Hawkins.

The county officials will be represented by three attorneys. It appears from the submission forms that the lead role will be taken by Scott Brister, who is representing Harris County. He has also submitted a set of bench exhibits for the Court’s reference during the argument.

Travis County will be represented at argument by Sherine E. Thompson. Dallas County will be represented by Barbara S. Nichols.