Relators' Petition for Writ of Mandamus in In Re: BP Plaintiffs' Steering Committee

TEX. DISCIPLINARY R. PROF’L CONDUCT 1.09, reprinted in TEX. GOV’T CODE ANN. tit. 2, subtit. G app. A (Vernon 2005) (TEX. STATE BAR R. art. X, � 9). Mr. Krist’s representation of BP falls within this language of Rule 1.09, and he is disqualified from representing BP. Accordingly, it was an abuse of discretion for respondent to deny relators’ Motion to Disqualify Mr. Krist.

A. There Is No Dispute That Mr. Krist Personally Formerly Represented Four Clients Who Asserted Claims Against BP That Arose From The Explosion.

Mr. Krist is a “lawyer who personally has formerly represented a client in a matter.” See TEX. DISCIPLINARY R. PROF’L CONDUCT 1.09(a). Mr. Krist represented four separate plaintiffs in claims arising from the BP explosion, the same event that gave rise to this present lawsuit in which Mr. Krist currently represents defendant BP. RR tab 17 at 10, 16. Thus, it is undisputed that Mr. Krist represented the former clients.

B. Mr. Krist Represents BP In A Matter Adverse To His Former Clients.

Adversity is not overcome by simply settling a case. The fact that former clients settled their claims against BP does not preclude a matter being adverse to them. Their claims were based on BP’s liability for the harm caused by the explosion and theories of negligence and gross negligence. RR tab 17 at 33, 46. In its pleadings, BP has denied that it is liable for the harm caused by the explosion. RR tabs 2, 11. “The dual representation [] 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 R. PROF’L CONDUCT 1.06 cmt. 6. That is the case here. Mr. Krist has represented clients claiming that BP was negligent and grossly negligent, and now represents BP claiming that the same conduct was not negligent or grossly negligent. Compare RR tab 17 at 33, 46 with RR tabs 2, 11. These conflicting positions demonstrate an even greater appearance of impropriety inherent in Mr. Krist’s representation of BP. The former clients’ settlement did not alter their contentions that BP was liable or BP’s denial of liability.

These adverse contentions could become the subject of litigation if the former clients’ settlement agreements are set aside. Already other claimants who settled have alleged that the settlement agreements were procured through negligence resulting in a breach of fiduciary duty. RR tab 5. In another suit, BP is alleged to have breached the settlement agreement by failing to pay medical expenses. RR tab 7. Thus, the adversity is not removed by reason of settlement.

Moreover, there would be a risk that the continuing duties owed by Mr. Krist could be breached at least inadvertently. An attorney owes certain duties toward their clients even after their representation of the client ends. See In re American Airlines, Inc., 972 F.2d 605, 617-19 (5th Cir. 1992); see also TEX. DISCIPLINARY R. PROF’L CONDUCT 1.05(b)(1). These continuing duties include the duty to maintain the confidentiality of client communications and the duty of loyalty. Id.

First, Mr. Krist does not recognize these continuing duties:

Q. And you don’t consider yourself to have a continuing obligation to those clients?
A. I do not.

RR tab 17 at 17. Not recognizing any continuing obligation, Mr. Krist admitted that he would not take any steps to prevent the use of information that the former clients presumably (as a matter of law) provided to him in confidence. RR tab 17 at 25.

Second, Mr. Krist could inadvertently disclose or use such information in violation of his continuing duty to maintain client confidences to benefit BP. In In re Roseland Oil & Gas, Inc., 68 S.W.3d 785 (Tex. App.�Eastland 2001, orig. proceeding), the court recognized that the advantages conferred by a lawyer’s knowledge of information provided by his former client makes a matter adverse. There, an attorney withdrew from his representation of two defendants, but continued to represent the remaining co-defendants. Id. at 786. The court concluded that the advantage that the former counsel had while cross-examining the former clients satisfied the adverse matter requirement:

The Vandevers also bear the risk that other statements made in confidence to their former attorney will be used against them in this proceeding. Margaret, William’s wife, remains involved in this suit; and confidential statements may influence [their former attorney's] handling of the case, be it intentional or inadvertent. [The former attorney] has noticed her deposition, and Margaret is also likely to testify at trial. The information [the former attorney] gained as former counsel to the Vandevers would allow him a heightened insight which would give him an unfair advantage in examining Margaret. This insight from [the former attorney's] prior access to confidential information would place Margaret at an unfair disadvantage. These risks make the pending matter adverse to the Vandevers.