Gillis v. Provost & Umphrey Law Firm, LLP
Dallas Court of Appeals, No. 05-13-00892-CV (January 14, 2015)
Justices Fillmore (Opinion), Stoddart, and Whitehill
In order to maintain a claim that a lawyer misused confidential information learned in a pre-representation interview, the would-be client must have some evidence of disclosure. The would-be client cannot rely on speculation or a presumption that disclosure occurred.
In 2005, Davis Gillis and Sammy Hughes met with Joe Kendall, an attorney with the Provost & Umphrey Law Firm. Gillis alleges that, during that meeting, he disclosed information he had learned about possible corruption in connection with some Dallas ISD and Houston ISD technology contracts, and that he sought Kendall’s advice about pursuing a qui tam action against the alleged wrongdoers. The parties differed on the content and extent of this conversation, but everyone agreed that Kendall made no “definitive commitment concerning continued representation” of Gillis in connection with a qui tam case and that Kendall did not, in fact, pursue such a claim on Gillis’s behalf. Gillis ultimately hired another lawyer to file the claim.
Meanwhile, an attorney in Pennsylvania retained Provost & Umphrey and Kendall, specifically, to serve as local counsel in a qui tam case involving some of the same allegations of wrongdoing in connection with the Dallas ISD contracts. The two lawsuits—Gillis’s and that filed by Provost & Umphrey for the Pennsylvania plaintiff—culminated in a settlement with the alleged wrongdoer, with both sets of plaintiffs being paid a share of the recovery. Gillis argued, however, that his group’s share of the recovery was less because Kendall used confidential information learned from Gillis to file the other lawsuit and, consequently, Gillis’s group was not the first to file as to the Dallas ISD allegations. He sued Kendall and the Provost firm, but the trial court granted summary judgment in favor of the defendants. Gillis appealed.
The Dallas Court of Appeals affirmed summary judgment, holding there was no evidence of a fiduciary relationship between Gillis and Kendall and that Kendall and Provost had conclusively disproved any misuse of confidential information.
With regard to the breach-of-fiduciary-duty claim, the Court noted that a fiduciary duty does not arise by virtue of an “initial attorney-client consultation.” Gillis submitted an affidavit stating that he scheduled the meeting with Kendall “to get his legal advice and to determine if [Provost] might be interested in representing [him] . . . .” But the parties agreed that Kendall never agreed to represent Gillis or any of his group. Absent evidence of an attorney-client relationship, the Court held Kendall owed Gillis no fiduciary duty, and a no-evidence summary judgment was warranted on the breach-of-fiduciary-duty claim.
The parties all agreed that, even in the absence of an attorney-client relationship, Kendall had a duty not to disclose any confidential information he learned from Gillis during the meeting. Gillis relied on the similarity of the alleged wrongdoing alleged in his case and the case Kendall handled as local counsel and on a legal presumption that information was disclosed. The Court was not persuaded by either. The Court held that, although a presumption of disclosure exists in the attorney-disqualification context, a private cause of action based on alleged disclosure requires evidence of actual disclosure. Kendall supported his motion for traditional summary judgment with affidavits from himself and the lead Pennsylvania lawyer, stating that Kendall served only as local counsel on the other matter, the lawsuit was completely drafted by the lawyers in Pennsylvania, Kendall provided no factual information whatsoever in preparing the pleadings, and Kendall did not discuss the information he obtained from Gillis with anyone. In light of this evidence, Gillis’s proffered evidence that the two lawsuits had “substantially similar allegations” created only a suspicion of disclosure and did not raise a fact issue that would prevent summary judgment.
