The underlying lawsuit began in 2009, and from 2009 to 2011 a legal assistant worked on the plaintiffs' side of the case for plaintiff Shah's counsel, actively participating in strategic communications and key attorney work product, taking part in "several hundred" privileged attorney-client communications, and attending meetings, including some with counsel for the other plaintiff, Apex Katy Physicians.¹ In 2011 she left for Hicks Thomas LLP, which then represented no party, and when an attorney for the defendants, Harrison, joined that firm in 2016 she was assigned limited secretarial tasks on the case; between 2017 and 2022 she worked on it on thirteen occasions, and there is no evidence that anyone at Hicks Thomas instructed her not to work on cases she had worked on before.² She filed two documents in March 2022, and the e-filing notifications served on plaintiffs' counsel listed her name as the filer, and in January 2023 Shah's representative recognized her name.³

After researching whether the assistant's work created a conflict, plaintiffs' counsel notified defense counsel and, after a brief investigation, plaintiffs moved to disqualify defense counsel in early March 2023, and the trial court granted the motion.¹ The Fourteenth Court of Appeals (Houston) summarily denied mandamus relief. The vehicle in this Court is an original proceeding for writ of mandamus, argued October 7, 2025, and decided April 10, 2026; Justice Bland did not participate.²

Original proceeding for writ of mandamus after the Fourteenth Court of Appeals (Houston) summarily denied relief; argued October 7, 2025, and decided April 10, 2026.³

The relators argued that the trial court abused its discretion in disqualifying their counsel under the American Home Products and Phoenix Founders line of cases, that plaintiffs showed no actual prejudice while defendants would be severely prejudiced, and that plaintiffs waived the right to seek disqualification.¹ The Court framed two questions: whether a nonlawyer who was not switching sides when hired but later worked on the case must have been instructed not to, and whether the e-filing notifications conclusively establish waiver.²

There is no adequate appellate remedy for an erroneous disqualification, so mandamus issues if the trial court's order was a clear abuse of discretion, which is not shown unless denial of the motion was the only legally permissible outcome.¹ Waiver of the right to seek disqualification requires an intentional relinquishment of a known right or intentional conduct inconsistent with claiming it, and a disputed fact issue on that intention precludes mandamus relief because the Court may not make factual determinations in mandamus.²

Whether the instruction requirement applied to this legal assistant.

Relators (Zaidi, Chagla, and Prestige Consulting): The bright-line rule does not apply because the assistant was not switching sides when she was hired and did not work on the matter until six years later; an admonishment at hiring would have had little effect, a de minimis exception should apply, and the trial court should have weighed prejudice to the defendants from disqualification.¹

Plaintiffs (Real Parties in Interest): The Phoenix Founders line of cases governs side-switching paralegals through burdens and presumptions that spare the former client from proving what the paralegal learned or disclosed; the relators concede the presumption of shared confidences applies and no instruction was given, so the Court should not overrule those cases.²

Whether plaintiffs waived disqualification.

Relators (Zaidi, Chagla, and Prestige Consulting): The e-filing notifications listing the assistant's name in March 2022 put plaintiffs on notice as a matter of law, so their one-year delay was dilatory.³

Plaintiffs (Real Parties in Interest): They first learned of the conflict in January 2023 and moved within about two months.⁴

Relators argued that the trial court abused its discretion in disqualifying their counsel under Phoenix Founders and American Home Products, with no showing of actual prejudice, and that disqualification left them without an adequate remedy by appeal.¹

• No admonition. Asked whether the legal assistant received an admonition not to switch sides, relators' counsel said he did not recall and it is not in the record. (Oral Argument, 0:05:16)
• Conflicts checks. The real parties' counsel said relators' only explanation, that their conflicts checks do not include paralegals, was not reasonable. (Oral Argument, 0:19:58)
• Never admonished. The real parties' counsel said the firm did not admonish her when hired or when the new attorney joined, and offered no evidence that it did. (Oral Argument, 0:22:03)
• Sanction. On rebuttal, asked what sanction would be adequate, relators' counsel said none, though if the court found confidential information was disclosed, it could then act. (Oral Argument, 0:41:06)
• Prejudice. On rebuttal, relators' counsel said there is massive prejudice to the defendants, and the plaintiffs identified only that they could not afford other counsel. (Oral Argument, 0:42:15)

None

Holding

Regardless of whether a nonlawyer was switching sides when hired, the employee must be instructed not to work on a conflicted matter at some time before commencing work on a later-arising conflict for the employing firm to avoid disqualification, and the e-filing notifications listing the assistant's name do not conclusively establish waiver, so the trial court did not abuse its discretion in disqualifying defense counsel.¹

Reasoning

The presumptions. If a nonlawyer worked on the other side of a matter in prior employment, there is a conclusive presumption that she obtained confidences from the prior client and a rebuttable presumption that she shared them with the new firm, which is irrebuttable if a lawyer at the new firm directed her to work on the matter unless that lawyer should not have known of the conflict.² Actual prejudice need not be shown because it would be a "virtually insurmountable burden" for the prior client, and the presumed sharing of confidences is the prejudice.³ The only way to rebut the shared-confidences presumption is to show both an instruction not to work on the matter and other reasonable steps, such as formal institutional screening.⁴

No instruction was given. Because the legal assistant worked on both sides, was conclusively presumed to have obtained confidences at the first firm and rebuttably presumed to have shared them at the second, and received no instruction before working on the case, Turner requires disqualification without reaching the effectiveness of any screening.⁵ The defendants' argument that an admonishment at hiring would have been pointless fails, because the instruction can be given any time before the nonlawyer commences work on a conflicted matter, and a failure to instruct at hiring could have been remedied before 2017, but nothing shows it was.⁶

No de minimis exception and no weighing of prejudice. The Court declined to adopt a de minimis exception to Turner's easily administrable rule, noting that a nonlawyer who worked on both sides of a case presents "a serious conflict of interest," and held that when disqualification rests on a side-switching nonlawyer's presumed sharing of confidences, trial courts need not weigh the prejudices.⁷

Waiver. The plaintiffs' and counsel's affidavits say they first learned of the conflict in January 2023 and moved within about two months, a delay the Court has held is not waiver when the movant acted diligently, and the defendants' evidence of when notifications were sent does not conclusively overcome that testimony, because counsel would have had to make two unsupported inferential leaps to recognize the name and connect it to the old case.⁸

Disposition

Petition for writ of mandamus denied.⁹

Vote Breakdown

Majority Opinion by Justice Devine

Joined by Blacklock, C.J., and Busby, Hawkins, Huddle, Lehrmann, Sullivan, and Young, JJ.

Did Not Participate

Bland, J.