IN RE: JIM S. ADLER & ASSOCIATES (2026)

OPINION

Relators Jim S. Adler & Associates, Frank W. Robertson, Michael Gomez, David J. Sacks, Jr., and Marco Antonio Rodriguez seek mandamus relief from the trial court's order disqualifying their attorneys, McCathern Houston, PLLC, from representing them in the underlying lawsuit. We conditionally grant relief.

Background

Relator Marco Antonio Rodriguez was struck by an object falling from a railcar in March 2023 and tragically rendered a quadriplegic. Two law firms assert an interest in his personal injury claim: Clutch Law Group, PLLC (“Clutch”) and Jim S. Adler & Associates (“JSA”).¹

Clutch contends that one of its representatives was asked to visit Rodriguez and his family in the hospital about two weeks after the accident.² Following a discussion of potential representation, Rodriguez asked Clutch to electronically send a contingent fee agreement to his adult son's cell phone. Clutch alleges that Rodriguez's son, present in the room, signed the Attorney Retainer Agreement (“Clutch Agreement”) with Rodriguez's consent. This happened on April 16, 2023.

On June 15, 2023, Rodriguez signed a Power of Attorney and Contingent Fee Agreement with JSA (“JSA Agreement”). Rodriguez signed the JSA Agreement by affixing his personal “X” mark with a pen held in his mouth. The following week, JSA filed a lawsuit on Rodriguez's behalf for personal injuries sustained in the March 2023 accident. Clutch had not filed a lawsuit for Rodriguez.

Shortly thereafter, Luc Nguyen, on behalf of Clutch, sent a letter to JSA accusing it of interfering with its client relationship and demanding that JSA withdraw as counsel for Rodriguez. In response, Rodriguez signed an affidavit and authorized sending a letter drafted by JSA to Clutch. The affidavit and letter stated that JSA is Rodriguez's attorney, that he never hired Nguyen or signed an agreement with Clutch, and that he did not want Clutch to represent him in connection with his accident.

Clutch filed the underlying lawsuit against Rodriguez and JSA in March 2024. Clutch asserted a breach of contract claim against Rodriguez, alleging that Clutch performed under the Clutch Agreement but Rodriguez breached the agreement by terminating it without cause and without notice. Clutch asserted entitlement to 40% of any gross recovery in Rodriguez's personal injury lawsuit.³ Clutch also asserted a claim of tortious interference with a contract against JSA. Clutch alleged that JSA's interference damaged Clutch by causing it to lose attorney's fees owed under the Clutch Agreement.

A JSA attorney answered on behalf of all defendants. Among other defenses, they asserted that the Clutch Agreement is invalid and unenforceable because Rodriguez neither signed it nor authorized his son to sign it. Rodriguez asserted that on April 16, 2023—the date of the Clutch Agreement—he was hospitalized in intensive care and incapable of understanding, authorizing, or executing a legal agreement. Defendants further claimed that JSA, when executing the JSA Agreement, acted in good faith and relied on representations that Rodriguez had not hired an attorney.

Clutch filed a motion to disqualify JSA. Before the court ruled on that motion, Rodney Drinnon and his firm, McCathern Houston, PLLC (collectively, “McCathern”), substituted as new counsel for all defendants. Clutch then filed an amended motion to disqualify McCathern. Clutch based its motion on Rule 1.06,⁴ arguing that the rule required disqualification because Rodriguez and JSA were directly adverse parties. That rule states in relevant part:

(a) A lawyer shall not represent opposing parties to the same litigation.

(b) In other situations and except to the extent permitted by paragraph (c), 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

(2) reasonably appears to be or become adversely limited by the lawyer's or law firm's responsibilities to another client or to a third person or by the lawyer's ․ own interests.

Relators filed a response. After an oral hearing, the trial court granted the motion to disqualify. The court found that “there is an inherent and unresolvable conflict of interest between [JSA] and Marco Rodriguez as their interests are directly adverse to each other.” The court ruled that McCathern was disqualified from representing both JSA and Rodriguez and ordered the firm to withdraw immediately. The trial court denied relators' motion for reconsideration but stayed the disqualification order to allow relators to file this mandamus proceeding.

Standard of Review

Mandamus relief is available when a trial court inappropriately grants a motion to disqualify counsel because there is no adequate remedy by appeal. In re Turner, 542 S.W.3d 553, 555 (Tex. 2017) (orig. proceeding) (per curiam); In re Kyle Fin. Grp., LLC, 562 S.W.3d 795, 798 (Tex. App.—Houston [14th Dist.] 2018, orig. proceeding). A trial court's decision on a disqualification motion is reviewed for an abuse of discretion. Turner, 542 S.W.3d at 555. A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). Because a trial court has no discretion in determining what the law is or in applying the law to the facts, a clear failure by the trial court to analyze or apply the law correctly constitutes an abuse of discretion. Id. at 840.

Applicable Law

Clutch contends McCathern's joint representation of Rodriguez and JSA violates Rule 1.06 because Rodriguez's interests are directly adverse to JSA's interests. Although the disciplinary rules lack the force of law, they provide guidelines and suggest relevant considerations. In re Murrin Bros. 1885, Ltd., 603 S.W.3d 53, 57 (Tex. 2019) (orig. proceeding). Ultimately, a court “must consider all the facts and circumstances to determine whether the interests of justice require disqualification.” Id.

Lawyer disqualification is a severe remedy that can immediately and significantly increase client expense, disrupt trial court proceedings, and deprive a party of the counsel of its choice. Id.; In re Thetford, 574 S.W.3d 362, 373 (Tex. 2019) (orig. proceeding); In re Gunn, No. 14-13-00566-CV, 2013 WL 5631241, at *2 (Tex. App.—Houston [14th Dist.] Oct. 15, 2013, orig. proceeding) (per curiam) (mem. op.). Conflict of interest questions are matters typically raised by the representing lawyer or the court. See Rule 1.06 cmt. 17. Here, the propriety of McCathern's joint representation was raised by opposing counsel. A motion to disqualify an opposing party's attorney is considered proper when the conflict “is such as clearly to call into question the fair or efficient administration of justice.” Id. But courts are to view objections of that sort with “great caution” as they may be a “technique of harassment.” Id. The prospect of disrupting a party's choice of attorney may be an enticing motivation for an opponent to seek disqualification. Thus, trial courts must “ ‘adhere to an exacting standard’ ” to discourage use of motions to disqualify counsel as a “ ‘dilatory trial tactic.’ ” In re RSR Corp., 568 S.W.3d 663, 666 (Tex. 2019) (orig. proceeding) (per curiam) (quoting Spears v. Fourth Court of Appeals, 797 S.W.2d 654, 656 (Tex. 1990) (orig. proceeding)).

A party moving for disqualification based on a violation of a disciplinary rule bears the burden of proof. See In re Sanders, 153 S.W.3d 54, 57 (Tex. 2004) (orig. proceeding) (movant bears burden of proof that the attorney should be disqualified); Gunn, 2013 WL 5631241, at *2. The movant must make two showings. First, the movant must “establish with specificity” that the disciplinary rule was violated. Thetford, 574 S.W.3d at 373-74. Mere allegations of unethical conduct or evidence showing a remote possibility of a violation of the disciplinary rules will not suffice. Spears, 797 S.W.2d at 656. Second, the party requesting disqualification must show it will suffer prejudice if disqualification is not granted. Murrin Bros., 603 S.W.3d at 57; In re Nitla S.A. De C.V., 92 S.W.3d 419, 422 (Tex. 2002) (orig. proceeding) (per curiam); Gunn, 2013 WL 5631241, at *3.

Analysis

Relators argue that the trial court abused its discretion in granting Clutch's motion to disqualify McCathern because Clutch failed to prove with specificity and beyond speculation that Rodriguez's and JSA's interests are directly adverse. Additionally, relators contend that Clutch made no showing of prejudice.

A. Relators have not waived their right to seek mandamus relief.

We first address Clutch's argument that relators waived the right to mandamus relief because they did not file the mandamus petition until nearly three months after the disqualification order. We reject this contention.⁵

“[A] relator who unduly or unreasonably delays filing a petition for mandamus relief may waive its right to such relief unless the delay is justified.” In re Am. Airlines, Inc., 634 S.W.3d 38, 43 (Tex. 2021) (orig. proceeding) (per curiam). Although mandamus is not an equitable remedy, its issuance is largely controlled by equitable principles, including the principle that equity aids the diligent and not those who slumber on their rights. Rivercenter Assocs. v. Rivera, 858 S.W.2d 366, 367 (Tex. 1993) (orig. proceeding). Whether a party's delay in asserting its rights precludes mandamus relief depends on the circumstances. In re Oceanografia, S.A. de C.V., 494 S.W.3d 728, 730 (Tex. 2016) (orig. proceeding) (per curiam). We consider whether there is any justification for the delay, whether the party seeking mandamus bears fault for the delay, and whether the delay has prejudiced the opposing party. See id. at 730-31; In re Allstate Fire & Cas. Ins. Co., 617 S.W.3d 635, 642 (Tex. App.—Houston [14th Dist.] 2021, orig. proceeding).

The trial court signed the disqualification order on October 14, 2025. Relators promptly moved for reconsideration, which the court denied on November 4, 2025. The same day, the trial court granted a stay specifically to allow relators an opportunity to file a petition for writ of mandamus, which they filed in this court on January 12, 2026. Given these circumstances, this is not an unreasonable or unjustified delay. See In re Laibe Corp., 307 S.W.3d 314, 318 (Tex. 2010) (orig. proceeding) (per curiam) (measuring time between denial of reconsideration motion and mandamus filing and concluding delay of two months not per se unreasonable or fatal to mandamus relief). Moreover, Clutch did not allege or prove a good faith and detrimental change in position due to the passage of time between November 4 and January 12. See id. Accordingly, relators have not waived their right to seek mandamus relief.

B. The trial court abused its discretion by disqualifying McCathern.

The trial court found disqualification was required because an inherent and unresolvable conflict of interest exists between JSA and Rodriguez, as their interests are directly adverse to each other. See Rule 1.06(b). Rule 1.06(b) provides that a lawyer shall not represent a person if the representation of that person 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. Tex. Disciplinary Rules Prof'l Conduct R. 1.06(b)(2). The comments to Rule 1.06 define “directly adverse” as follows:

Within the meaning of Rule 1.06(b), the representation of one client is “directly adverse” to the representation of another client if the lawyer's independent judgment on behalf of a client or the lawyer's ability or willingness to consider, recommend or carry out a course of action will be or is reasonably likely to be adversely affected by the lawyer's representation of, or responsibilities to, the other client. The dual representation also is directly adverse if the lawyer reasonably appears to be called upon to espouse adverse positions in the same matter or a related matter.

Tex. Disciplinary Rules Prof'l Conduct R. 1.06 cmt. 6. Our supreme court has also stated that a lawyer in a civil case may not “ ‘represent two or more clients in a matter if there is a substantial risk that the lawyer's representation of one client would be materially and adversely affected by the lawyer's duties to another client in the matter ․’ ” In re B.L.D., 113 S.W.3d 340, 346-47 (Tex. 2003) (quoting Restatement (Third) of the Law Governing Lawyers, § 128 (2000)); see In re Khan, 533 S.W.3d 387, 393 (Tex. App.—Houston [14th Dist.] 2015, orig. proceeding). In short, the proper inquiry is to look to whether the substance of the challenged representation requires the lawyer to take conflicting positions or to take a position that risks harming one of his clients. Murrin Bros., 603 S.W.3d at 58 (“ ‘Adversity is a product of the likelihood of the risk and the seriousness of its consequences.’ ”) (quoting Nat'l Med. Enters., Inc. v. Godbey, 924 S.W.2d 123, 132 (Tex. 1996) (orig. proceeding)).

We begin by observing that Clutch presented no evidence with its motion to disqualify. It also presented no evidence at the hearing. Its arguments are based exclusively on relators' pleadings. This court has stated that a court may rely on pleadings to determine if parties are adverse. Khan, 533 S.W.3d at 393. But again we view a motion to disqualify filed by an opponent and lacking supporting evidence with great caution because it has an air of tactical disruption. See Gunn, 2013 WL 5631241, at *5 (citing Spears, 797 S.W.2d at 658). And “[a] trial court abuses its discretion in granting a motion to disqualify if no evidence is presented proving that disqualification is warranted.” Id.⁶

Looking at the present pleadings, we see that relators are currently pursuing a unified defense against Clutch's claims. There are no cross-claims asserted. Both Rodriguez and JSA dispute the existence and enforceability of the Clutch Agreement on which the breach of contract claim is based. If relators prevail on that issue, even a remote prospect of a conflict between relators becomes moot.

The present state of relators' pleadings renders this case distinguishable from Clutch's principal authority. In Khan, for instance, this court denied mandamus relief from an order disqualifying counsel from joint representation of a group of defendants. Khan, 533 S.W.3d at 390. There, however, the plaintiff's pleadings put the defendants' adversity directly in play. Sharma's original petition alleged actions for breach of contract, fraud, and conversion, based on defendants Khan's and ACGI's breach of an alleged promise to prepare and file all paperwork necessary for the Sharmas to obtain an EB-5 visa to immigrate to the United States. Id. Sharma sought return of his $1.115 million investment in ACGI. Id. The petition also alleged that defendant Khan breached fiduciary duties he owed as an officer and director by misappropriating ACGI's assets and entering into self-dealing transactions with ACGI that were undertaken without adequate consideration. Id. Further, Sharma alleged that Khan fraudulently transferred the $1.1 million ACGI investment to co-defendants Anantasai, RHMG, SUG, and SHG. Id. at 393. Based on this allegation, we concluded that ACGI was adverse to the other defendants because ACGI had claims that it could bring against the other defendants and there was a serious risk of adversity. Id.

In re Seven-O Corp., 289 S.W.3d 384 (Tex. App.—Waco 2009, orig. proceeding), is more off point. The attorney that was the subject of disqualification in that case represented clients on opposing sides of the litigation. Id. at 390. The court held that an attorney could not represent both plaintiffs and third-party defendants in the same case. Id. at 390-91.

Here, relators' interests in defense of Clutch's contract claim are aligned because they both dispute the validity of the Clutch Agreement. The only potential risk of adversity relates to the tortious interference claim asserted against JSA, but we do not think Clutch has proven that risk to be substantial. Clutch's key point is based on JSA's allegation in its answer that it relied on representations that no prior attorney had been hired. Clutch contends that allegation creates direct adversity between JSA and Rodriguez because it suggests that Rodriguez is untruthful.

We think Clutch's concerns are too hypothetical to support McCathern's disqualification at this point. Clutch claims that McCathern's representation of both JSA and Rodriguez impedes Rodriguez's ability to pursue third-party claims against JSA. To be sure, the risk Clutch identifies is foreseeable based on relators' answer, and it is possible that Rodriguez might in the future allege or testify to facts controverting JSA's assertions in defense of the tortious interference claim. But Rodriguez has to date neither challenged JSA's allegation nor asserted any cross-claim. Rather, Rodriguez has stated in no uncertain terms under oath that he wants JSA to represent him; that he does not want Clutch to represent him; and that he never hired or wanted to hire Clutch. Unlike the petition in Khan for example, Clutch's petition does not allege that JSA violated any duty owed to Rodriguez. Clutch has speculatively alleged that JSA may have breached a duty to Rodriguez if JSA did not advise Rodriguez about his potential liability for attorney's fees owed to both JSA and Clutch. But again, merely alleging that a potential conflict between JSA and Rodriguez could materialize in the future is insufficient to warrant the severe remedy of disqualifying McCathern. See Spears, 797 S.W.2d at 658 (condemning disqualification motions that are based entirely upon “speculative and contingent allegation[s]”). We conclude that Clutch failed to meet the exacting standard required to demonstrate a substantial risk of adversity. Even if a substantial risk should eventuate, a fully informed Rodriguez may decide whether to waive any conflict. See Rule 1.06(c).⁷

C. Clutch failed to demonstrate prejudice.

Even if a lawyer violates a disciplinary rule, the party requesting disqualification must demonstrate that the opposing lawyer's conduct caused actual prejudice that requires disqualification. Murrin Bros., 603 S.W.3d at 57; In re Users Sys. Servs., Inc., 22 S.W.3d 331, 336 (Tex. 1999) (orig. proceeding); Gunn, 2013 WL 5631241, at *3.

Here, assuming the trial court did not abuse its discretion in finding Rodriguez's and JSA's interests are directly adverse, relators are entitled to mandamus relief nonetheless because Clutch did not make the required showing of prejudice. Its amended motion to disqualify McCathern is silent on this required element. It did not provide any evidence, nor does it point to any on appeal, that it suffered or would suffer actual prejudice if the trial court allowed McCathern to continue representing relators. See In re Meador, 968 S.W.2d 346, 350 (Tex. 1998) (orig. proceeding). On the other hand, relators alleged and the record shows that disqualification has disrupted the orderly process of the litigation and deprived them of the counsel of their choice. See Murrin Bros., 603 S.W.3d at 57.

Conclusion

For these reasons, we conclude the trial court abused its discretion in disqualifying McCathern from representing relators. We also conclude relators have no adequate remedy by ordinary appeal. See Turner, 542 S.W.3d at 555; Gunn, 2013 WL 5631241, at *7. We conditionally grant the petition for writ of mandamus and direct the trial court to vacate its October 14, 2025 order granting Clutch's amended motion to disqualify McCathern. We are confident the trial court will comply, and the writ will issue only if it does not. Additionally, we deny Clutch's Rule 12 Motion to Show Authority.

FOOTNOTES

1.   Relators Frank W. Robertson, Michael Gomez, and David J. Sacks, Jr. are alleged to be attorneys at JSA. We refer to the attorney relators collectively as JSA.

2.   According to Clutch, the firm previously represented Rodriguez's uncle in an unrelated matter.

3.   The record does not reveal the current status of Rodriguez's personal injury lawsuit.

4.   Tex. Disciplinary Rules Prof'l Conduct R. 1.06, reprinted in Tex. Gov't Code tit. 2, subtit. G, app. A (Tex. State Bar R. art. X, § 9). All references to rules are to these rules unless otherwise noted.

5.   Clutch also argued that relators failed to provide this court with a complete mandamus record. The documents alleged to be lacking, to the extent they are material, have since been supplemented.

6.   The mandamus record is not completely bereft of relevant evidence. All parties cite to evidence filed in connection with relators' pending summary-judgment motion, which is included in the record. As no party objects, we will take that evidence into consideration when relevant.

7.   Rule 1.06 expressly allows an attorney to represent clients whose interests may be materially and directly adverse or may become adverse if “(1) the lawyer reasonably believes the representation of each client will not be materially affected; and (2) each affected or potentially affected client consents to such representation after full disclosure of the existence, nature, implications, and possible adverse consequences of the common representation and the advantages involved, if any.” Tex. Disciplinary Rules Prof'l Conduct R. 1.06(c). Relators have included in the mandamus record a copy of a purported waiver executed by Rodriguez. This was presented to the trial court for the first time with relators' motion for reconsideration. At the October 7, 2025 hearing, however, relators informed the trial court that they were not asserting that Rodriguez had waived any conflict. Given the state of the record, we do not consider the waiver argument in this proceeding.

Kevin Jewell Justice