In In re Goodman, No. 06-06-00102-CV, 2006 Tex. App. Lexis 10815 (Tex. App.–Texarkana 2006) (mandamus), the court of appeals found that a county attorney was disqualified from prosecuting a DWI against one of his former clients from private practice.

Facts

The State charged Goodman with driving while intoxicated (DWI)-subsequent offense. See Tex. Penal Code Ann. § 49.04 (defining offense) and Tex. Penal Code Ann. § 49.09 (providing for enhanced penalties for repeat offenders). The State alleged two misdemeanor, jurisdictional convictions: first, that Goodman was convicted of DWI in Delta County cause number 9667 on February 28, 1997; and, second, that he was convicted in Lamar County cause number 18802 on September 12, 2000. Young, before becoming the elected county attorney, represented Goodman in cause number 18802, one of the convictions the State proposed to use to enhance Goodman’s potential sentence, should he be found guilty. The indictment for Goodman’s current felony charge also alleges Goodman has been twice previously convicted of a felony offense, further raising the available punishment range to between twenty-five and ninety-nine years’ imprisonment, or imprisonment for life. See Tex. Penal Code Ann. § 12.42(d).

Young submitted a bill to the Lamar County district clerk’s office for 8.49 hours of work Young completed in cause number 18802, State vs. Goodman. That bill, dated September 12, 2000 (the date of Goodman’s conviction in cause number 18802), lists five separate conferences Young had with Goodman during the course of their four-month-long attorney-client relationship. The trial court’s judgment in cause number 18802 also lists Young as Goodman’s attorney of record, and Young’s signature appears on the plea paperwork associated with the judgment in that case.

At the hearing on the motion to disqualify Young, Goodman testified he was represented by Young in one of the DWI cases now being used by the State for a jurisdictional enhancement. Goodman also testified that, during the course of that association with Young, Goodman disclosed confidential information about himself and about the facts of that case. Goodman testified that he discussed with Young the “alcohol issue.” In fact, the following exchange took place during Goodman’s testimony:

Q. [By the State] Your alcohol issues are a matter of public record.

A. [Goodman] I don’t believe that how many beers I drink a day is a public record.

Q. Did you tell that to Mr. Young?

A. Yes.

This testimony was undisputed. Additionally, Goodman told the trial court that he had not given Young permission to prosecute the current charge, nor had he waived any other rights he has concerning his preexisting attorney-client relationship with Young. Goodman expressed a fear that Young would use those confidential communications – specifically those regarding how much Goodman drank on a daily basis – against the accused during the trial of the current charges.

Young testified that he is the elected county attorney of Lamar County, but previously worked as a criminal defense attorney in private practice. Young admitted he has not received permission from Goodman to prosecute the latter. Young opined that he does not have a conflict of interest because Goodman had not made an attempt to attack the validity of any of his previous DWI convictions.

The Court's analysis.

In a lengthy discussion, the court of appeals found that the county attorney should be disqualified:

The Texas Disciplinary Rules of Professional Conduct Provide Guidance

As a member of the State Bar of Texas, Young is subject to the Texas Disciplinary Rules of Professional Conduct. Texas courts have often looked to these disciplinary rules to decide disqualification issues. See, e.g., In re Meador, 968 S.W.2d 346, 350 (Tex. 1998); In re Works, 118 S.W.3d 906, 908-09 (Tex. App.–Texarkana 2003, orig. proceeding). While the disciplinary rules are merely guidelines for court-ordered disqualification (rather than controlling standards), these rules do provide reasonable guidance – even in cases where an attorney may not have clearly violated one of the disciplinary rules. In re Epic Holdings, Inc., 985 S.W.2d 41, 48 (Tex. 1998); Meador, 968 S.W.2d at 351; see also Gonzalez v. State, 117 S.W.3d 831, 837-38 (Tex. Crim. App. 2003) (using Tex. Disciplinary R. Prof'l Conduct 3.08 as guideline); House v. State, 947 S.W.2d 251, 252-53 (Tex. Crim. App. 1997) (citing Rule 3.08, cmt. 10, which states: "this rule may furnish some guidance"); Anderson Producing, Inc. v. Koch Oil Co., 929 S.W.2d 416, 421 (Tex. 1996); Works, 118 S.W.3d at 908-09; In re Bahn, 13 S.W.3d 865, 872 (Tex. App.--Fort Worth 2000, orig. proceeding).

The Sixth Amendment to our Federal Constitution guarantees a number of rights to the accused in a criminal proceeding. Not the least of these rights is the right to counsel. U.S. Const. amend. VI; Gideon v. Wainwright, 372 U.S. 335 (1963) (right to counsel in all felony cases); Argersinger v. Hamlin, 407 U.S. 25 (1972) (right to counsel in jailable misdemeanor cases). Professor Susette M. Talarico has written, "The assistance of counsel, more than any other dimension of due process, evokes general American support for fair play and reflects the centrality of attorneys in the adversarial tradition of Common Law Countries." Susette M. Talarico, Right to Counsel in The Oxford Companion to the Supreme Court of the United States 229, 230 (Kermit L. Hall ed., 2005).

"The central aim of due process doctrine is to assure fair procedure when the government imposes a burden on an individual," writes Professor Sargentich of American University's Washington College of Law. "The doctrine seeks to prevent arbitrary government, avoid mistaken deprivations, allow persons to know about and respond to charges against them, and promote a sense of the legitimacy of official behavior." Thomas O. Sargentich, Procedural Due Process in The Oxford Companion to the Supreme Court of the United States 273, 274. But due process "is not a technical conception with a fixed content unrelated to time, place and circumstances." Mathews v. Eldridge, 424 U.S. 319, 334 (1976). Instead, the United States Supreme Court has instructed that the

identification of specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Id. at 335.

Rules 1.05 and 1.09 of the Texas Rules of Disciplinary Procedure are pertinent to Young's prior and current representation in the proceeding now before this Court. Rule 1.05 provides that, with certain exceptions not applicable here,

[A] lawyer shall not knowingly . . . (2) [u]se confidential information of a client to the disadvantage of the client unless the client consents after consultation [or] (3) [u]se confidential information of a former client to the disadvantage of the former client after the representation is concluded unless the former client consents after consultation or the confidential information has become generally known.

Tex. Disciplinary R. Prof'l Conduct 1.05(b), reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G app. A (Vernon 2005) (Tex. State Bar R. art. X, § 9). Rule 1.09 concerns conflicts of interest:

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 the representation in reasonable probability will involve a violation of Rule 1.05; or . . . if it is the same or a substantially related matter.

Tex. Disciplinary R. Prof'l Conduct 1.09(a), reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G app. A (Vernon 2005).

An Attorney May Not Prosecute a Former Client in the Same Case in Which the Attorney Represented That Client

An attorney may not represent the State when the matter being prosecuted is the same matter for which that attorney previously represented the accused. Morgan, 616 S.W.2d at 626; see also Tex. Comm. on Prof'l Ethics, Op. 538, 64 Tex. B.J. 698 (2001) (discussed further below). In such a situation, "there exists the very real danger that the district attorney would be prosecuting the defendant on the basis of fact acquired by him [or her] during the existence of his [or her] former professional relationship with the defendant. Use of such confidential knowledge would be a violation of the attorney-client relationship and would be clearly prejudicial to the defendant." Id. (referencing Gajewski v. United States, 321 F.2d 261 (8th Cir. 1963)). In Morgan, Texas' highest criminal court found that an attorney who had formerly represented a defendant at trial (in which the defendant received a probated sentence) was prohibited from subsequently representing the State at a hearing regarding the revocation of that same defendant's probated sentence in the case for which that attorney had represented the defendant. Morgan, 616 S.W.2d at 626. Such a conflict of interest inherently rose to the level of a due-process violation. Id.

Though Young is not representing the State in a revocation proceeding against Goodman in the same case for which he previously represented Goodman, Young did serve as Goodman's attorney in one of the cases now being used by the State to enhance Goodman's potential punishment to the felony level. And the degree to which Goodman abuses alcohol – information the record indicates Young learned during the scope of the prior representation – is of such an inherently similar subject matter as what will be at issue for the current DWI charge that we believe there is a real and substantial danger such information would be used to Goodman's disadvantage at trial, especially during cross-examination of Goodman (should he testify) at guilt/innocence or punishment (where such evidence inherently concerns Goodman's potential for rehabilitation). Morgan, therefore, provides guidance.

An Attorney May Also Be Barred from Adverse Representation at Other Times

In 1998, the Texas Supreme Court reviewed an original proceeding in which several defendants sought the disqualification of the plaintiff's attorneys. Epic Holdings, 985 S.W.2d at 43-44. The defendants alleged the plaintiff's lawsuit against them involved proceedings that were "substantially similar" to the legal services previously provided to the defendants by the now adverse attorneys. Id. The plaintiff's lawyers had previously helped draft the articles of incorporation for one of the defendants, and one of the plaintiff's claims sought to attack the validity of the work previously completed for the defendants. Id. at 50-51. Justice Hecht, writing for a 6-3 majority, agreed disqualification was appropriate:

We have held that two matters are "substantially related" within the meaning of Rule 1.09 when a genuine threat exists that a lawyer may divulge in one matter confidential information obtained in the other because the facts and issues involved in both are so similar. Such a threat exists here, when information Johnson & Gibbs lawyers obtained from George and EPIC in 1988 may be relevant in the prosecution of Anderson's claims. An actual disclosure of confidences need not be proven; the issue is the existence of a genuine threat of disclosure because of the similarity of the matters.

Id. at 51 (footnotes omitted). Thus, the maxim we take from Epic Holdings is that, where a subsequent matter is "substantially related," the attorney may also be prohibited from representing a party adverse to the former client. See also Metro. Life Ins. Co., 881 S.W.2d at 320. This "substantial relationship" test is a product of common law and predates the Texas Rules of Disciplinary Conduct for attorneys. Cap Rock Elec. Coop., 35 S.W.3d at 230.

In 2001, the [Professional Ethics Committee of the State Bar of Texas] was asked to address whether "a lawyer, who is the newly elected district attorney, [is] prohibited from prosecuting a former client in a new criminal proceeding." Tex. Comm. on Prof'l Ethics, Op. 538. While opinions of the Texas Ethics Commission are advisory, rather than binding, authority, Opinion 538 directly addresses the issues now before this Court and we find great logic in its reasoning. The opinion acknowledged that, under Rule 1.09, an attorney is prohibited from representing a party adverse to a former client if the matter then being litigated would be considered "substantially related" to the prior representation. Id. “The 'substantially related' aspect primarily involves current proceedings where a lawyer could have acquired confidential information in a previous representation that could now be used to the former client's disadvantage or the advantage of a current client or some other person.” Id. (referencing Comment 4, Rule 1.09). The ethics opinion then noted that "our confidentiality rules are designed to encourage such free discussions with the added guarantee that confidentiality will continue even after the attorney-client relationship is terminated," but allowing an elected district attorney to prosecute a former client ultimately "undermine[s] our legal system." Id. (referencing Comment 1 and 8, Rule 1.05). The only way the elected prosecutor could avoid an ethical conflict would be if he or she proceeded cautiously, "ignoring any fact known by the new prosecutor about the former client as a result of the former representation." Id. But, continued the ethics committee, this is not an adequate solution:

Although a prosecutor has the responsibility to see that justice is done and not simply be an advocate, Comment 1, Rule 3.09, the prosecutor is still obligated to act with competence, commitment and dedication on the State's behalf. Comment 6, Rule 1.01. Adherence to the Rules places an impossible burden on an effective prosecutor and creates an almost certain probability that in the adversarial trial setting, confidentiality will be compromised. Similarly, to obtain and ensure protection, the objecting former client is forced to divulge the very same confidential information he seeks to prevent from disadvantageous use, thus defeating the purpose of the rules. These conflicting obligations impose conflicting duties on both the prosecutor and the former client and thus requires [sic] prohibition of this practice, absent the former client's consent. See Comment 7 to Rule 1.06.

Id.

The opinion also goes one step further – opining that an elected district attorney would be prohibited from participating in a trial in which the elected district attorney used a prior conviction as enhancement or punishment evidence, regardless of whether the prior conviction is for a matter that is "substantially related" to the current proceeding. Id. As this latter situation requires no proof of a "substantial relationship" between the prior representation and the current proceedings, yet would nonetheless be prohibited, the opinion's ultimate resolution of this corollary issue only undergirds our conclusion that the present case likewise cannot be permitted to go forward with Young representing the State as an adversary to his former client.

The Record Below Mandates But One Result: Young May Not Prosecute Goodman

Young, by virtue of his previous representation of Goodman, possesses confidential information about Goodman regarding "the alcohol issue," specifically, how much alcohol Goodman consumes on an average basis. Goodman has not waived Young's duty not to disclose the confidences revealed during that prior presentation.

There is a real, genuine, and inherent danger that the State, with Young serving as its representative, would use this confidential information in its prosecution of Goodman, especially when the prior offense is being used as a felony jurisdictional enhancement and when the underlying criminal offense is the same type of crime for which Young previously represented Goodman. If Goodman chooses to testify during guilt/innocence, Young will be free to cross-examine the accused about his pattern of alcohol use and abuse. See Tex. R. Evid. 611(b) (witness may be cross-examined about any matter relevant to any issue in the case). While this is true in all DWI prosecutions, what is unique in this case is that Young already knows the proper and truthful answers to such questions solely because he learned those answers during the scope of his prior representation. See Tex. Comm. on Prof'l Ethics, Op. 538. The typical district attorney prosecuting the average DWI case would not have such an advantage. Further, the fear of being cross-examined by Young during guilt/innocence about these confidential disclosures may dissuade Goodman from otherwise testifying in his own defense during guilt/innocence. And because the majority of DWI prosecutions involve only two potential fact witnesses – the arresting police officer and the accused – Goodman might well be foreclosed (as a practical matter) from offering any evidence in his defense because the fear of being cross-examined potentially prohibits the testimony of the only other witness capable of controverting the State's testimonial evidence.

Additionally, the gravity of Goodman's pattern of alcohol use, misuse, and/or abuse will undoubtedly become an issue before the jury if the case reaches the punishment phase. Young, by virtue of having previously represented Goodman on an alcohol-related charge, and having discussed with him his daily alcohol consumption, will have greater insight into Goodman's habits and character flaws than would someone who had not been a part of that necessarily intimate attorney-client relationship. Since this information may be highly probative and relevant at the instant trial, there exists a genuine threat that Young, to properly fulfill his responsibility as a zealous prosecutor, would use the confidential information to make the best case that Goodman is deserving of the strongest punishment from the judge or jury. See id. This creates an undeniable advantage for the State – an advantage that is both violative of the right of due process and avoidable. See id.

We conclude the evidence before the trial court leads to but one, inescapable conclusion: these confidences (learned by Young during his prior service as Goodman's attorney in the most recent DWI prior) are so "substantially related" to the issues that will arise in the current prosecution that we have before us "the existence of a genuine threat of disclosure," which necessitates Young's disqualification. Because the trial court did not reach this determination, the trial court erred, and we must direct the lower court to render the judgment that is required by the evidence.

Why This Rises to a Due-Process Violation

Remembering the United States Supreme Court's guidance from Mathews, 424 U.S. at 335, regarding how to identify due-process violations, we are led to the conclusion that this case achieves such a classification. First, Goodman's interest in keeping confidential his attorney-client communications will be protected by prohibiting Young from prosecuting this case. Second, there is a real risk that these communications will be used to Goodman's detriment if Young is not disqualified. There are no adequate safeguards short of Young's disqualification that will protect this interest. And finally, the Government (as represented by the Lamar County district attorney's office) will, at best, suffer a minimal fiscal or administrative burden due to Young's disqualification because all that is required is the substitution of another attorney to handle Goodman's prosecution. See Tex. Comm. on Prof'l Ethics, Op. 538 (discussing solutions of appointing special prosecutor under Tex. Code Crim. Proc. Ann. art. 2.07 (Vernon 2005), or screening the elected from other lawyers in prosecutor's office). Thus, on balance, the factors enunciated by the Supreme Court tip the scales of justice in Goodman's favor on the issue of whether the trial court's failure to disqualify Young rises to the level of a due-process violation. . . .

A Final Note

Our decision today should not be read as an endorsement of the idea that a district or county attorney is forever barred from prosecuting his or her former clients. That is not the law, nor should it be. Instead, a disqualification should occur only when (1) the underlying proceeding is so substantially related to real and actual disclosures (as opposed to theoretical discussions) that occurred during the previous attorney-client relationship, and (2) there exists a genuine threat that disclosure of these confidential communications will either materially advance the State's case or drastically undermine the accused's ability to mount a defense--such that this advancement or undermining rises to the level of a due-process violation. We believe such is the case here, but only because of the discrete facts in the record before us.

There may be other times, even cases involving subsequent DWI charges, where there is no undisputed evidence of actual confidential communications that would materially impact either the State's case or the accused's ability to mount a defense. In those situations, disqualifications should neither be sought nor granted. Similarly, merely because a prosecutor once served as an accused's attorney for a traffic ticket does not now automatically prohibit that attorney from prosecuting the accused for murder; much more evidence must be apparent in the record that somehow demonstrates that the denial of a disqualification motion will result in a due-process violation.

Conclusion

For the reasons given above, we cannot say either appeal or habeas provides Goodman with an adequate or efficient remedy. Goodman has shown Young possesses confidential information as a result of the latter's prior representation of Goodman for a DWI case now being used by the State to jurisdictionally enhance Goodman's current charge. The former and the current charges are substantially related, and there is a genuine threat that the confidential information may be used against Goodman. To permit Young to continue to represent the State would violate Goodman's due-process rights. Because the law and facts available in this case lead to that inescapable conclusion, and because the trial court did not so hold, we find the trial court erred in denying Goodman's petition for writ of mandamus. We, therefore, conditionally grant Goodman's petition. The writ will issue only if the trial court does not withdraw its previous order of denial and enter an order disqualifying Young in accordance with the opinion of this Court within ten days of the issuance of our opinion.