Response in Opposition to Plaintiff's Motion to Disqualify Counsel for Defendant Darren G. Gibson¶

Bass v. TTUHSC, No. 5:25-cv-00244-H-BV (N.D. Tex.) · Dkt. 50 · 2026-04-28 · PDF

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
KEVIN N. BASS,
Plaintiff,
v.
TEXAS TECH UNIVERSITY HEALTH
SCIENCES CENTER, et al.
Defendants.

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CIVIL ACTION NO. 5:25-cv-00244-H-BV

DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTION TO
DISQUALIFY COUNSEL FOR DEFENDANT DARREN G. GIBSON OR, IN THE
ALTERNATIVE, TO REQUIRE SEPARATE REPRESENTATION
TO THE HONORABLE UNITED STATES DISTRICT JUDGE:
Defendants Texas Tech University Health Sciences Center (“TTUHSC”) and the
Individual Defendants file this Response in Opposition to Plaintiff’s Motion to Disqualify Counsel
for Defendant Darren G. Gibson or, in the Alternative, to Require Separate Representation (Doc.
46) (the “Motion”), and respectfully show the Court as follows:
I.

INTRODUCTION

Plaintiff’s Motion to Disqualify is not a legitimate effort to protect the integrity of these
proceedings. It is an attempt by a non-client adversary to interfere with Defendant Gibson’s chosen
counsel based on a speculative and legally unsupported theory of conflict.
Plaintiff advances two purportedly “independent” grounds for disqualification: (1) that the
Texas Attorney General lacks statutory authority to represent Defendant Darren G. Gibson, and
(2) that joint representation of TTUHSC and Gibson creates an irreconcilable conflict under Rule
1.06 of the Texas Disciplinary Rules of Professional Conduct. (Doc. 46 at 3–4). Neither theory
withstands scrutiny, and neither satisfies the demanding standard governing disqualification in

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federal court. See In re American Airlines, Inc., 972 F.2d 605, 611 (5th Cir. 1992); In re Dresser
Indus., Inc., 972 F.2d 540, 543 (5th Cir. 1992).
Plaintiff’s first theory—framed as an “ultra vires” argument—does not implicate
disqualification at all. Whether the Attorney General has statutory authority to represent a
particular defendant under Chapter 104 of the Texas Civil Practice and Remedies Code concerns
the scope of the State’s indemnification and defense obligations, not whether counsel may appear
in federal court. See Tex. Civ. Prac. & Rem. Code §§ 104.001–.004. Federal courts do not permit
litigants to recast alleged statutory limitations as a basis for disqualification, and Plaintiff cites no
authority holding otherwise. That omission is telling. Disqualification is an extraordinary remedy,
and it cannot rest on a collateral challenge to the State’s internal representation decisions. See
FDIC v. U.S. Fire Ins. Co., 50 F.3d 1304, 1313–14 (5th Cir. 1995).
Plaintiff’s reliance on Chapter 104, Chapter 108, and various Attorney General Opinions
only underscores the defect in his argument. Those authorities address indemnification and liability
allocation—not litigation authority or conflicts of interest. See Tex. Civ. Prac. & Rem. Code §§
104.001–.004, 108.001; Tex. Att’y Gen. Op. DM-0409 (1996). Even the Outside Counsel Contract
on which Plaintiff relies confirms the Attorney General’s continuing supervisory authority over
representation decisions, including the ability to “withdraw, modify, or expand” approval of legal
services. (Doc. 46-1 at App. 3–4). Nothing in those materials supports the proposition that an
opposing litigant may invoke them to disqualify counsel.
Plaintiff’s second theory—a purported “irreconcilable conflict”—is equally deficient. It
rests entirely on the premise that TTUHSC and Gibson might pursue different litigation strategies.
(Doc. 46 at 6–7). That premise is insufficient as a matter of law. The Fifth Circuit has repeatedly
held that “speculative or potential conflicts” do not warrant disqualification and that relief is

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appropriate only where a clearly identifiable conflict calls into question the fair and efficient
administration of justice. American Airlines, 972 F.2d at 611; Dresser, 972 F.2d at 543.
The actual record reflects no such conflict. Defendants have appeared through unified
counsel and asserted aligned defenses, including sovereign immunity, qualified immunity, and
failure to state a claim. Plaintiff’s assertion that TTUHSC must “distance itself” from Gibson—
and that Gibson must “implicate” TTUHSC—finds no support in governing law. See Monell v.
Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978) (municipal liability requires policy or custom);
Filarsky v. Delia, 566 U.S. 377, 389–90 (2012) (qualified immunity analysis focuses on the nature
of the function performed, not the individual’s employment status). These defenses are routinely
asserted together and do not create the zero-sum conflict Plaintiff posits.
Nor do the disciplinary rules salvage Plaintiff’s Motion. Rule 1.06 prohibits representation
only where it “reasonably appears to be or become adversely limited” by duties to another client.
Tex. Disciplinary R. Prof’l Conduct 1.06(b)(2). The Fifth Circuit has made clear, however, that
the Texas Disciplinary Rules are “guidelines” that do not create substantive rights enforceable by
opposing parties. U.S. Fire Ins. Co., 50 F.3d at 1313–14. A non-client litigant cannot invoke those
rules to disrupt an opponent’s representation based on hypothetical conflicts or strategic
disagreement.
Plaintiff’s Motion ultimately depends on a series of assumptions that the record does not
support and the law does not recognize. His statutory theory addresses the wrong issue, his conflict
theory rests on speculation, and the authorities he cites do not bridge that gap. Consequently, the
Motion fails at the threshold and on the merits, and it should be denied in its entirety.

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LEGAL STANDARD

Federal courts possess inherent authority to regulate the conduct of attorneys appearing
before them, including the power to disqualify counsel. That authority, however, is sharply limited:
disqualification is “a severe sanction” that must be used sparingly and only when necessary to
preserve the integrity of the judicial process. American Airlines, 972 F.2d at 611; Horaist v.
Doctor’s Hosp. of Opelousas, 255 F.3d 261, 266 (5th Cir. 2001).
The Fifth Circuit requires courts to balance competing considerations—maintaining ethical
standards on the one hand, and protecting a party’s right to counsel of choice on the other, and
must guard against the use of disqualification motions as tactical devices. American Airlines, 972
F.2d at 611; U.S. Fire Ins. Co., 50 F.3d at 1316. Courts in this District likewise recognize the
“palpable risk” that disqualification motions—particularly those brought by an opponent—may be
used to disrupt litigation or deny a party its chosen counsel. Galderma Labs., L.P. v. Actavis Mid
Atl. LLC, 927 F. Supp. 2d 390, 394–95 (N.D. Tex. 2013). For that reason, disqualification is
disfavored and should not be imposed absent a clear showing that continued representation would
materially undermine the fairness or integrity of the proceedings. See Horaist, 255 F.3d at 266.
The Texas Disciplinary Rules provide guidance but do not establish controlling standards.
See Dresser, 972 F.2d at 544 (motions to disqualify are governed by federal law, not local ethical
rules alone). The Fifth Circuit has made clear that these rules are relevant but not controlling
standards that “do not create substantive rights” enforceable by opposing parties. U.S. Fire Ins.
Co., 50 F.3d at 1313–14. Accordingly, an alleged violation of Rule 1.06, standing alone, does not
warrant disqualification.
Nor may disqualification rest on speculative or hypothetical conflicts. The Fifth Circuit has
squarely rejected disqualification based on the “mere possibility of conflict,” requiring instead a

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real and present conflict that threatens the fairness or efficiency of the proceeding. Dresser, 972
F.2d at 543; see also Wheat v. United States, 486 U.S. 153, 164 (1988).
Plaintiff invokes a more relaxed “appearance of impropriety” formulation drawn from
earlier decisions such as Woods v. Covington County Bank, 537 F.2d 804 (5th Cir. 1976), and
United States v. Kitchin, 592 F.2d 900 (5th Cir. 1979). Those cases do not control the analysis
here. Subsequent Fifth Circuit authority clarifies that disqualification requires a specifically
identifiable conflict that threatens the integrity of the proceeding, not generalized concerns or
abstract notions of impropriety. American Airlines, 972 F.2d at 611; Dresser, 972 F.2d at 543. To
the extent Woods and Kitchin suggest a broader standard, they must be read in light of—and
constrained by—this later, controlling authority.
Standing is an additional, independent requirement. Courts are particularly wary of
disqualification motions brought by non-clients, recognizing the risk of tactical misuse. American
Airlines, 972 F.2d at 611; U.S. Fire Ins. Co., 50 F.3d at 1316. A non-client movant must
demonstrate a concrete, particularized risk that the alleged conflict will prejudice the fairness of
the proceedings—not merely that interests could diverge in theory. Horaist, 255 F.3d at 266.
These principles impose a demanding burden. The movant must identify a real, present,
and specifically identifiable conflict—not a hypothetical or conjectural one. To wit, a movant must
establish standing, identify a real and present conflict, and demonstrate a meaningful risk to the
integrity of the proceeding. Plaintiff satisfies none of these requirements. His Motion relies on an
overbroad formulation of the standard, speculative theories of conflict, and authorities that do not
support disqualification.
Under controlling Fifth Circuit law, the absence of an actual conflict and cognizable
prejudice is dispositive. The Motion therefore fails as a matter of law and should be denied.

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III.
A.

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ARGUMENT AND AUTHORITIES

Plaintiff Lacks Standing to Seek Disqualification
Plaintiff’s Motion fails at the threshold because he lacks standing to seek disqualification.

He is not—and has never been—a client of the Office of the Attorney General or undersigned
counsel. As a result, he cannot invoke Rule 1.06 to challenge Defendants’ representation absent a
showing of concrete prejudice to the integrity of the proceedings. See Tex. Disciplinary R. Prof’l
Conduct 1.06(b)(2). He makes no such showing here.
The Fifth Circuit has repeatedly cautioned that disqualification motions brought by nonclients are disfavored because they are particularly susceptible to abuse as litigation tactics.
American Airlines, 972 F.2d at 611. Courts therefore require more than a theoretical or strategic
disagreement with opposing counsel’s representation; the movant must demonstrate that the
alleged conflict “clearly” threatens the fair and efficient administration of justice. Id.; Horaist, 255
F.3d at 266; see also Pistikopoulos v. Tex. A&M Univ., No. 10-16-00327-CV, 2017 WL 888379,
at *3 (Tex. App.—Waco Mar. 1, 2017, no pet.) (“Additionally, case law shows that Pistikopoulos
lacks standing to complain about the Attorney General’s representation of Vestal in this matter
because he has no ‘legally protected interest’ in the identity of Vestal’s counsel.”) (citing cases).
Plaintiff attempts to manufacture standing by relying on language in American Airlines
suggesting that a litigant may “bring” a potential conflict to the Court’s attention. (Doc. 46 at 5).
That language does not confer a right to obtain disqualification. It recognizes only that courts may
consider conflict issues when properly presented. The Fifth Circuit has made equally clear that the
disciplinary rules “do not create substantive rights” enforceable by opposing parties. U.S. Fire Ins.
Co., 50 F.3d at 1313–14. Plaintiff cannot convert the Court’s supervisory authority into a personal
entitlement to disqualify opposing counsel.

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Nor does Plaintiff establish the required showing of prejudice. His theory is that joint
representation “suppresses” an adversarial dynamic between co-defendants. (Doc. 46 at 6). That
is not a cognizable injury. The Fifth Circuit requires a concrete risk that the alleged conflict will
undermine the fairness or integrity of the proceedings—not speculation that different litigation
strategies might exist in theory. Horaist, 255 F.3d at 266; Dresser, 972 F.2d at 543.
The record confirms the absence of any such risk. Plaintiff identifies no actual conflict, no
inconsistent position taken by Defendants, and no decision in which counsel’s representation has
been impaired. Instead, he hypothesizes that TTUHSC and Gibson could pursue different defenses
and asserts that counsel might be constrained if that were to occur. (Doc. 46 at 6–7.) That is
precisely the type of “hypothetical conflict” the Fifth Circuit has rejected as insufficient. Dresser,
972 F.2d at 543.
Plaintiff’s reliance on generalized statements about the Court’s inherent authority is
likewise unavailing. While the Court retains the power to address conflicts sua sponte, that
authority does not relieve a movant of the burden to demonstrate a concrete, present risk to the
integrity of the proceedings. Wheat, 486 U.S. at 160. Plaintiff has not met that burden.
Plaintiff’s position ultimately collapses into a request that the Court disqualify counsel
based on conjecture about how Defendants might litigate their defenses in the future. Fifth Circuit
precedent does not permit that result. Absent a concrete showing that the alleged conflict threatens
the fairness of these proceedings, Plaintiff lacks standing to seek disqualification, and the Motion
fails on this ground as a matter of law.
B.

No Actual Conflict Exists
Plaintiff’s second theory—that joint representation creates an “irreconcilable conflict”—

fails because it rests entirely on speculation, not an actual, present conflict. Fifth Circuit law is

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clear: disqualification requires more than theoretical divergence of interests; it requires a concrete
conflict that threatens the fairness of the proceeding. Dresser, 972 F.2d at 543. Plaintiff does not—
and cannot—make that showing.
1.

The Record Reflects a Unified Defense, Not Adverse Interests

The analysis begins with the actual record, not Plaintiff’s hypotheticals. Defendants have
appeared through unified counsel and asserted aligned defenses, including sovereign immunity,
qualified immunity, and failure to state a claim (see Doc. 27). There are no cross-claims, no fingerpointing defenses, and no inconsistent positions.
That matters. Courts evaluating disqualification focus on whether an actual conflict has
manifested—not whether one could be imagined. American Airlines, 972 F.2d at 611. Where codefendants pursue a common litigation strategy, joint representation is not only permissible but
routine.
Plaintiff’s theory requires the Court to disregard the record and instead assume that
Defendants must become adverse to one another in order to litigate effectively. The law imposes
no such requirement. Alignment of defenses at the pleading stage is not evidence of conflict; it is
the ordinary course of litigation. The absence of any actual adversity between Defendants
forecloses Plaintiff’s attempt to establish a present conflict.
Further, Plaintiff contends that “AAG Smith’s briefing confirms” the alleged conflict
because it does not “address” the contractual relationship between TTUHSC and Gibson. (Doc. 46
at 7). That argument mischaracterizes both the record and the governing standard.
There is no requirement that jointly represented defendants present differentiated defenses
at the pleading stage to avoid disqualification. To the contrary, unified briefing is the expected
result where defendants assert common threshold defenses such as sovereign immunity, qualified

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immunity, and failure to state a claim. American Airlines, 972 F.2d at 611 (recognizing legitimacy
of coordinated representation absent actual conflict).
More importantly, the absence of a particular argument is not evidence of impaired
representation. Disqualification turns on whether counsel’s representation is materially limited by
conflicting duties—not on whether Plaintiff believes additional arguments could have been raised.
See Tex. Disciplinary R. Prof’l Conduct 1.06(b)(2). Plaintiff identifies no instance in which
counsel was unable to advance a position on behalf of either client.
Plaintiff’s theory would invert the governing standard, allowing an opposing party to
manufacture a “conflict” by pointing to arguments counsel did not make. The Fifth Circuit has
rejected that approach, requiring a showing of an actual, present conflict—not speculation about
litigation strategy. Dresser, 972 F.2d at 543. The record reflects coordinated advocacy, not
constrained representation, and Plaintiff’s attempt to reframe unified briefing as evidence of
conflict fails as a matter of law.
Plaintiff’s reliance on Perillo v. Johnson, 79 F.3d 441 (5th Cir. 1996), is misplaced. Perillo
arises in the criminal ineffective-assistance context, where the Sixth Amendment guarantees a
defendant the right to conflict-free counsel and permits post-conviction relief where an actual
conflict adversely affected counsel’s performance. Id. at 447. That framework does not govern
civil disqualification analysis. Unlike in the criminal context, disqualification in civil cases does
not turn on whether a different strategy might have been pursued, but on whether counsel’s
representation is presently and materially limited by conflicting duties. See Dresser, 972 F.2d at
543. Plaintiff’s attempt to import a criminal ineffective-assistance standard into a civil
disqualification motion is doctrinally incorrect and does not establish an actionable conflict here.

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2.

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Plaintiff’s “Monell vs. Qualified Immunity” Theory is Legally Incorrect

Plaintiff’s central argument is that TTUHSC must “distance itself” from Gibson to avoid
liability, while Gibson must “implicate” TTUHSC to establish qualified immunity. (Doc. 46 at 6–
7). That premise is legally incorrect. As an initial matter, Monell involved a materially different
situation. Monell addressed liability of local governmental entities under Section 1983 and does
not apply to state agencies such as TTUHSC. See Will v. Mich. Dep’t of State Police, 491 U.S. 58,
71 (1989) (States and state agencies are not “persons” under § 1983).
A governmental entity’s liability under Monell requires proof that a constitutional violation
resulted from an official policy or custom—not merely the actions of an individual defendant.
Monell, 436 U.S. at 694. At the same time, an individual defendant is entitled to qualified immunity
unless he violated clearly established law while performing a discretionary function. Filarsky, 566
U.S. at 389–90.
These defenses are not mutually exclusive. Defendants may simultaneously argue that no
constitutional violation occurred, that any alleged violation was not attributable to official policy,
and that individual defendants are entitled to qualified immunity. Courts routinely consider these
defenses together at the motion-to-dismiss stage.
Plaintiff’s effort to manufacture a zero-sum conflict between these doctrines misstates
both. Qualified immunity does not require an individual defendant to attribute liability to the
governmental entity, and Monell liability does not require an entity to disavow every action of an
individual defendant.
Sovereign immunity defenses further align—not divide—the interests of TTUHSC and
Gibson. Both seek dismissal at the threshold based on jurisdictional and legal deficiencies in

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Plaintiff’s claims. The governing doctrines are compatible, and Plaintiff’s attempt to recast them
as mutually exclusive does not establish a conflict and cannot support disqualification.
3.

Plaintiff’s Reliance on Out-of-Circuit Authority is Misplaced

Plaintiff relies heavily on Dunton v. County of Suffolk, 729 F.2d 903 (2d Cir. 1984), to
argue that joint representation of a governmental entity and an individual defendant is inherently
conflicted. That reliance is misplaced.
Likewise, Dunton involved a materially different situation. The municipality avoided
liability by arguing that the officer acted outside the scope of his employment, while counsel
simultaneously represented both parties. Id. at 907. That is an actual, developed conflict—one in
which the legal defenses were directly adverse and affirmatively asserted. In Dunton, the conflict
arose because counsel affirmatively advanced a defense that undermined one client to benefit the
other. Id. at 907.
No comparable circumstances exist here. TTUHSC has not argued that Gibson acted
outside the scope of any engagement, nor has it advanced any defense that would impose liability
on Gibson to avoid institutional exposure. Plaintiff’s reliance on Dunton therefore rests on a factual
predicate that is absent from this case.
Plaintiff’s reliance on Filarsky is equally misplaced. That case held that a private individual
temporarily retained by the government to carry out its work is entitled to seek qualified immunity
under Section 1983. 566 U.S. at 389–90. It did not involve disqualification, joint representation,
or conflicts of interest. It provides no support for Plaintiff’s theory, but rather supports the Attorney
General’s representation of Gibson, who was acting as a state actor on behalf of TTUHSC, similar
to the other individual defendants. Authorities addressing concrete, developed conflicts do not
apply where no such conflict exists.

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4.

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Hypothetical Future Divergence Does Not Justify Disqualification

Plaintiff’s argument reduces to the assertion that TTUHSC and Gibson might pursue
different litigation strategies at some point in the future. That showing is insufficient as a matter
of law.
The Fifth Circuit has rejected disqualification based on “speculative or potential conflicts,”
emphasizing that courts must avoid disrupting representation based on contingencies that may
never arise. Dresser, 972 F.2d at 543; Wheat, 486 U.S. at 164.
If an actual conflict were to develop, the Court retains discretion to address potential
conflicts when they present a real risk of developing into an actual conflict. Wheat, 486 U.S. at
163–64. Disqualification, however, is not a prophylactic remedy for hypothetical scenarios. It is
reserved for conflicts that exist now and threaten the integrity of the proceeding. Speculation about
future divergence does not satisfy the standard for disqualification and cannot support Plaintiff’s
Motion. Plaintiff identifies no such specifically identifiable conflict here.
C.

Plaintiff’s Remaining Authorities Do Not Support Disqualification
Plaintiff’s Motion relies heavily on a collection of Attorney General Opinions, ethics

materials, and administrative definitions to suggest that the Attorney General’s representation of
Defendant Gibson is improper. (See Doc. 46 at 4–5; see also Doc. 46-1). Those authorities do not
support disqualification.
Attorney General Opinions are advisory interpretations of state law. They are not binding
precedent and do not establish rules governing attorney disqualification in federal court. See Tex.
Att’y Gen. Op. DM-0409 (1996). The opinions cited by Plaintiff address whether certain
categories of individuals—such as independent contractors—fall within statutory indemnification

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frameworks. Id. They do not address the Attorney General’s authority to represent parties in
litigation, nor do they purport to restrict that authority.
That distinction is dispositive. The issue before this Court is whether joint representation
creates a disqualifying conflict under Rule 1.06—not whether Gibson falls within Chapter 104’s
indemnification provisions. See Tex. Civ. Prac. & Rem. Code §§ 104.001–.004. Plaintiff cites no
authority bridging that gap, and none exists.
Plaintiff’s reliance on Texas Ethics Opinion 579 is similarly misplaced. That opinion
recognizes that government lawyers may be treated as a single “firm” for purposes of conflict
analysis. Tex. Ethics Op. 579 (2007). But that principle does not establish a conflict; it defines the
analytical framework. Even when lawyers are considered part of the same firm, disqualification
still requires a showing that representation “reasonably appears to be or become adversely limited”
by duties to another client. Tex. Disciplinary R. Prof’l Conduct 1.06(b)(2). As explained above,
no such limitation exists here.
Plaintiff also cites administrative definitions of “outside counsel” to emphasize that Gibson
is an independent contractor. (Doc. 46 at 4). Those definitions merely distinguish between retained
counsel and full-time government employees for administrative purposes. See, e.g., 1 Tex. Admin.
Code § 57.1(12). They do not address litigation authority, conflicts of interest, or the propriety of
joint representation in federal court.
Taken together, Plaintiff’s authorities establish only that Gibson may be classified as an
independent contractor for certain statutory or administrative purposes. They do not demonstrate
that the Attorney General is prohibited from representing him, and they do not establish any
conflict of interest—much less one warranting disqualification.

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Authorities that address indemnification, administrative classifications, or internal
government structure do not supply a basis for disqualification. Plaintiff’s reliance on those
materials fails to satisfy the governing standard, and this independent ground for relief must be
rejected.
D.

Disqualification is Unwarranted and Would Cause Substantial Prejudice
Even apart from the absence of any actual conflict, the Court must consider the practical

consequences of disqualification. The Fifth Circuit has emphasized that courts should guard
against the use of disqualification motions as procedural weapons, particularly where such motions
would disrupt the proceedings without advancing any legitimate ethical concern. American
Airlines, 972 F.2d at 611. Further, courts in this District have expressly cautioned against this risk,
recognizing that disqualification motions present a “palpable risk of unfairly denying a party the
counsel of his choosing.” Galderma, 927 F. Supp. 2d at 394.
This case is already in a critical procedural posture. Defendants have appeared, responded
to the Complaint, and fully briefed a Motion to Dismiss raising threshold jurisdictional and
immunity defenses. (Doc. 46 at 2 (acknowledging pending motion); see also Defs.’ Mot. to
Dismiss, Doc. 27). Disqualifying counsel at this stage would require new counsel to duplicate
substantial work, become familiar with a complex record, and delay resolution of dispositive issues
that are intended to be addressed at the outset of the case.
Plaintiff identifies no countervailing harm that would justify that disruption. His asserted
concern—that joint representation may limit adversarial tension between co-defendants—is
speculative at best and legally insufficient at worst. (Doc. 46 at 6). There is no indication that
counsel’s representation has impaired the development of the record or the presentation of legal
arguments.

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Courts routinely deny disqualification where the alleged conflict is attenuated and the
resulting prejudice would be substantial. Horaist, 255 F.3d at 266 (emphasizing balancing of
interests and disfavoring disqualification absent clear necessity). That principle applies with full
force here.
Disqualification would impose immediate and concrete costs while addressing only a
hypothetical concern. The governing standard does not permit that tradeoff. The balance of
interests weighs decisively against disqualification, and this independent basis for Plaintiff’s
Motion fails as a matter of law.
IV.

CONCLUSION AND PRAYER

Plaintiff’s Motion to Disqualify rests on a series of legal and factual errors that
independently—and collectively—foreclose the relief he seeks. He attempts to convert a dispute
over statutory indemnification into a basis for disqualification, relies on advisory materials that do
not govern attorney conduct in federal court, and conjures up a conflict-of-interest theory that
depends entirely on speculation rather than any actual adversity between Defendants.
Controlling Fifth Circuit law requires far more. Disqualification is an extraordinary remedy
reserved for circumstances in which a real, present conflict threatens the integrity of the
proceeding. Hypothetical divergence of interests, strategic disagreement, and generalized appeals
to “appearance” do not satisfy that standard. Nor may a non-client litigant invoke disciplinary rules
or state-law authorities to interfere with an opposing party’s choice of counsel absent a concrete
showing of prejudice.
No such showing exists here. The record reflects aligned defenses, coordinated
representation, and no impairment of counsel’s ability to advocate on behalf of any Defendant.

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The authorities Plaintiff cites do not address the issue presented, and the theories advanced in the
Motion do not satisfy the governing standard for disqualification.
Plaintiff’s Motion is a tactical effort to disrupt the defense and alter the course of the
litigation. It does not implicate any recognized basis for disqualification. Fifth Circuit precedent
cautions against precisely this use of disqualification motions, and those concerns are fully
implicated here. Each of Plaintiff’s asserted “independent” grounds fails on its own terms;
together, they underscore the absence of any legally cognizable basis for disqualification.
The Motion fails at every level—standing, substance, and remedy—and should be denied
in its entirety.
WHEREFORE, PREMISES CONSIDERED, Defendants respectfully request that the
Court deny Plaintiff’s Motion to Disqualify Counsel for Defendant Darren G. Gibson or, in the
Alternative, to Require Separate Representation, and grant Defendants all further relief, at law or
in equity, to which they may be justly entitled.
Respectfully submitted,
KEN PAXTON
Attorney General
BRENT WEBSTER
First Assistant Attorney General
RALPH MOLINA
Deputy First Assistant Attorney General
AUSTIN KINGHORN
Deputy Attorney General for Civil Litigation
KIMBERLY GDULA
Chief, General Litigation Division
/s/ Scott D. Smith
SCOTT D. SMITH
Assistant Attorney General
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Texas Bar No. 24011874
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
General Litigation Division
P.O. Box 12548, Capitol Station
Austin, Texas 78711−2548
Telephone: (512) 917-3132
Division Fax: (512) 477-2348
Email: scott.smith@oag.texas.gov
Counsel for Defendants

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CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing document was served on April 28,
2026, via the Court’s ECF system to:
Kevin N. Bass
Phone: 512-333-4092
Email: kbassphiladelphia@gmail.com
Pro Se Plaintiff
/s/ Scott D. Smith
SCOTT D. SMITH
Assistant Attorney General

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