Among our firm’s growing practice areas is litigation where one party files a motion seeking to disqualify another party’s lawyers. These motions are becoming ever more common. We are hired both to file and pursue disqualification, and to represent lawyers in resisting disqualification.
One of the critical issues in seeking disqualification—no matter what the grounds—is the timing of the motion. Under Texas law, “[a] party who fails to file its motion to disqualify opposing counsel in a timely manner waives the complaint.” Vaughan v. Walther, 875 S.W.2d 690, 690 (Tex. 1994) (per curiam). Simply put, if you wait too long to file, you may out of luck.
In determining waiver of disqualification, Texas courts consider the length of time between when a party learned of the alleged basis for disqualification and when the party asserted it, and any evidence suggesting the motion is being used as a dilatory trial tactic. See In re La. Tex. Healthcare Mgmt., L.L.C., 349 S.W.3d 688, 689–90 (Tex. App.—Houston [14th Dist.] 2011, orig. proceeding) (internal citations omitted). Prejudice to the non-moving party may also be a factor. See In re EPIC Holdings, Inc., 985 S.W.2d 41, 52–53 (Tex. 1998) (orig. proceeding).
In Vaughan, the Texas Supreme Court held that a disqualification movant waived her complaint by waiting six months to file the motion. Vaughan, 875 S.W.2d at 690-91. The Court also has found waiver where a party waited seven months to file its motion. Buck v. Palmer, 381 S.W.3d 525, 528 (Tex. 2012).
Similarly, a host of courts across Texas have found waiver where parties waited between four and eight months to seek disqualification. See, e.g., Litman v. Litman, 402 S.W.3d 280, 288, 289–90 (Tex. App.—Dallas 2013, pet. denied); Diggs v. Diggs, No. 14-11-00854-CV, 2013 WL 3580424, at *7 (Tex. App.—Houston [14th Dist.] July 11, 2013, no pet.) (mem. op.); Enstar Petroleum Co. v. Mancias, 773 S.W.2d 662, 664 (Tex. App.—San Antonio 1989, orig. proceeding); BP Am. Prod. Co. v. Zaffirini, 419 S.W.3d 485, 515 (Tex. App.—San Antonio 2013, pet. denied); In re Davila, No. 04-99-00571-CV, 1999 WL 735164, at *3 (Tex. App.—San Antonio Sept. 22, 1999, orig. proceeding) (not designated for publication).
As a result of these decisions, one article about disqualification has concluded that Texas has an “almost-per se” rule that a delay of more than four months constitutes waiver. See David Hricik & Jae Ellis, Motions to Disqualify in Texas State and Federal Court Litigation, 74 Tex. B.J. 466, 467 (2011).
If you believe that opposing counsel is laboring under a prohibited conflict, and that this conflict may warrant disqualification, don’t wait! You must immediately consult a lawyer about seeking disqualification to ensure that you don’t waive your right to relief.