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Order Denying Motion to Disqualify Counsel

Bass v. TTUHSC, No. 5:25-cv-00244-H-BV (N.D. Tex.) · Dkt. 53 · 2026-07-14 · 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.

;

No. 5:25-CV-244-H-BV

ORDER DENYING MOTION TO DISQUALIFY COUNSEL

After a lengthy disciplinary hearing, pro se Plaintiff Kevin N. Bass was dismissed
from Texas Tech University Health Sciences Center’s (TTUHSC) medical school.
lawsuit arises from that dismissal.

His

Defendants, including Darren Gibson, who acted as

the disciplinary hearing officer, are represented by the Texas Office of the Attorney
General (OAG).

Bass now moves to disqualify the OAG from representing Gibson,

asserting that the OAG does not have statutory authority to represent Gibson and that
representing both TTUHSC and Gibson creates a conflict. Because Bass lacks standing
to pursue disqualification of Gibson’s counsel and because there is no actual or probable
conflict of interest, the Court DENIES the motion.
1.

Background

Bass sues TTUHSC and others for disability discrimination and civil-rights
violations.

Dkt. Nos. 1, 14. Many of the defendants are employed by TTUHSC.

Dkt. No. 14. Gibson, on the other hand, is an outside attorney who was apparently

See

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retained by TTUHSC to preside over the disciplinary hearing.

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Id. at 5. The OAG has

appeared and filed a responsive pleading on behalf of all Defendants, including Gibson.
See Dkt. No. 27.
Bass asks the Court to disqualify the OAG from representing Gibson in his
individual capacity because (1) Gibson is not a state employee, so the OAG lacks
statutory authority to represent him, and (2) the OAG’s joint representation of Gibson and
TTUHSC creates a conflict of interest in violation of Rule 1.06 of the Texas Disciplinary
Rules of Professional Conduct.

Dkt. No. 46 at 4, 8-14.

Defendants filed a response in

opposition to Bass’s motion, to which Bass filed an untimely reply.
2.

Dkt. Nos. 50, 51.

Legal Standard

A motion to disqualify counsel is the appropriate mechanism by which a party
should bring unethical conduct or conflicts of interest to the attention of a court. In re
Am. Airlines, Inc., 972 F.2d 605, 611 (Sth Cir. 1992) (citation omitted).

In the Fifth

Circuit, disqualification cases are guided by, inter alia, state and national ethics rules,
including the ABA’s Model Rules and the Texas Rules.

/d. at 610; see In re Dresser

Indus., Ine., 972 F.2d 540, 543 (Sth Cir. 1992) (applying Model Rules); F.D.ZC. v. US.
Fire Ins. Co., 50 F.3d 1304, 1312 (Sth Cir. 1995) (considering Texas Rules in addition to
Model Rules).

Because motions to disqualify can deny a party counsel of its own choosing,
courts must assess such motions with skepticism, particularly when filed by an opponent.
US. Fire, 50 F.3d at 1316; In re Am. Airlines, 972 F.2d at 611.

sanction that must not be imposed cavalierly.”

Disqualification “is a

U.S. Fire, 50 F.3d at 1316.

In evaluating

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a motion to disqualify, a court should consider “whether a conflict has (1) the appearance
of impropriety in general, or (2) a possibility that a specific impropriety will occur, and
(3) the likelihood of public suspicion from the impropriety outweighs any social interests
which will be served by the lawyer’s continued participation in the case.” Dresser, 972
F.2d at 544. But these factors should not be applied mechanically.

Instead, the court

should “consider all of the facts particular to the case in the context of the relevant ethical
criteria and with meticulous deference to the litigant’s rights.” Jn re ProEducation Int’l,
Inc., 587 F.3d 296, 300 (Sth Cir. 2009) (internal quotation marks, alterations, and citation

omitted). “[D]isqualification is unjustified without at least a reasonable possibility that
some identifiable impropriety actually occurred.”

U.S. Fire, 50 F.3d at 1316.

3. Analysis
A. Bass lacks standing to disqualify Gibson’s counsel.
Bass is not a current or former client of the OAG or of Assistant Attorney General
(AAG) Scott Daniel Smith, who is the OAG counsel assigned to this case.
therefore argue that Bass lacks standing to seek disqualification.

Defendants

Dkt. No. 50 at 6-7. The

Court agrees.

The Fifth Circuit has issued conflicting panel decisions as to whether a party who
is not a current or former client has standing to move for disqualification.

In an April

1976 panel decision, the Fifth Circuit stated that, “[a]s a general rule, courts do not
disqualify an attorney on the grounds of conflict of interest unless the former [or current]

client moves for disqualification.” Jn re Yarn Processing Pat. Validity Litig., 530 F.2d
83, 88 (Sth Cir. 1976); see also Dresser, 972 F.2d at 542, 544 (evaluating motion to

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disqualify filed by current client). This principle recognizes that “(t]he underlying rules

relating to attorney conflicts of interest are designed to allay any apprehension a client
may have in frank discussion of confidential information with this attorney.” In re Yarn
Processing, 530 F.2d at 90. “To allow an unauthorized surrogate to champion the rights
of the former client would allow that surrogate to use the conflict rules for his own
purposes where a genuine conflict might not really exist.” Jd. The panel recognized a
natrow exception to the rule that applies where there is an “unethical change of sides
[that is] manifest and glaring” or “open and obvious[.]” Jd. at 89.
Just two weeks later, a different panel of the Fifth Circuit determined that a third
party could move to disqualify opposing counsel. Jn re Gopman, 531 F.2d 262, 265 (Sth
Cir. 1976).

In Gopman, the panel considered and rejected a disqualified attorney’s

argument that the government—which had never been a client of the attorney—lacked
standing to challenge the propriety of his representation of multiple parties during a grand

jury investigation. Jd. at 264-65. The panel reasoned that “[w]hen an attorney discovers
a possible ethical violation concerning a matter before a court, he is not only authorized
but is in fact obligated to bring the problem to that court’s attention.” Jd. at 265.

Indeed,

“a lawyet’s adversary will often be in the best position to discover unethical behavior,”
and the trial court has “jurisdiction to act upon this claim of unethical conduct.” Jd. at
266 (explaining “it is beyond dispute that lawyers are officers of the court and that the
courts have the inherent authority to regulate their professional conduct”).
The Fifth Circuit has echoed the general sentiment that a court must guard against
unethical conduct occurring in a proceeding before it in subsequent cases. See, e.g., Am.

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Airlines, 972 F.2d at 611 (“[A] district court is obliged to take measures against unethical
conduct occurring in connection with any proceeding before it.” (internal quotation
marks, brackets, and citation omitted)); ProEducation, 587 F.3d at 299-300 (same).

But

in those cases, the movants were former clients of the attorney or firm against whom they
sought disqualification. Am. Airlines, 972 F.2d at 607-08; ProEducation, 587 F.3d at
297-98.

Thus, standing was not at issue. But see Brown & Williamson Tobacco Corp. v.

Daniel Int'l Corp., 563 F.2d 671, 673 (Sth Cir. 1977) (per curiam) (relying on Gopman
and explaining that “appellant has standing to seek disqualification even though it is not
an aggrieved client because its attorneys are authorized to report any ethical violations
committed in the case”).
Because the Yarn Processing panel decision was issued first, it controls.

Wade v.

Hewlett-Packard Dev. Co. LP Short Term Disability Plan, 493 F.3d 533, 542 (Sth Cir.
2007) (“When there are conflicting panel decisions, the earliest panel decision
controls.”), abrogated on other grounds by Bunner v. Dearborn Nat'l Life Ins. Co., 37
F.4th 267 (Sth Cir. 2022).

The Court therefore relies on the holding in Yarn Processing

to evaluate Bass’s standing. See Clemens v. McNamee, No. 4:08-CV-00471, 2008 WL
1969315, at *3 (S.D. Tex. May 6, 2008) (same).
Bass is not a current or former client of the OAG or AAG.

As a result, he has

standing to challenge the propriety of the OAG’s representation only if the purported
ethical violation is “open and obvious.” Jn re Yarn Processing, 530 F.2d at 88. Bass
asserts that itis. Dkt. Nos. 46 at 12-13; 51 at 5-8. He is mistaken.

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There is no evidence that the OAG has unethically changed sides during the

litigation, nor is there evidence of an actual conflict of interest, as discussed further
below.

Thus, the Yarn Processing exception does not apply, and Bass lacks standing to

move for the OAG’s disqualification based on the alleged conflict of interest. In re Yarn
Processing, 530 F.2d at 88-90; see also Schneider v. Cnty. of Will, 123 F. App’x 715,

716-17 (7th Cir. 2005) (observing that “regardless of whether Will County followed the
proper state procedures for appointing [firm], [plaintiffs] do not have standing to

disqualify the firm in the context of this federal lawsuit” because the representation did
not harm them); Areizaga v. ADW Corp., No. 3:14-CV-2899-P, 2015 WL

13567554, at

*4 (N.D. Tex. May 19, 2015) (denying plaintiff's motion to disqualify defendant’s
counsel where plaintiff was not a former client and there was no change of sides).
B.

Even if Bass had standing, disqualification is not warranted.
Even if Bass had standing, the Court would deny his motion because he has not

demonstrated adequate grounds to warrant such. First, Bass’s argument regarding the
OAG’s lack of statutory authority to represent Gibson is not grounds for disqualification.
Bass argues that outside legal counsel or independent contractors are not listed in Chapter
104 of the Texas Civil Practice and Remedies Code as someone who the OAG must
represent.

Dkt. No. 46 at 8 (citing Tex. Civ. Prac.

& Rem. Code §§ 104.001, 104.004(a)).

However, Chapter 104 concerns “State Liability for Conduct of Public Servants.” That
is, it addresses indemnification and state liability. See §§ 104.001, .002, .004. “[T]he
state is liable for indemnification” for certain types of conduct, and in those cases, the

state must represent the employees involved. Jd. But Chapter 104 does not prohibit the

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state from representing persons not listed in § 104.001—it merely lists the persons the
OAG must represent.

§ 104.004(a) (requiring that “[t]e attorney general shall defend a

public servant or estate listed in Section 104.001 in a cause of action covered by this
chapter”).
Bass also points to Chapter 108 to support his argument that independent
contractors such as Gibson are excluded from the definition of a public servant, so the
OAG cannot represent Gibson,

Dkt. No. 46 at 9. But again, this chapter relates to

limitations on liability and says nothing about whether the OAG is prevented from
representing an independent contractor or outside counsel such as Gibson.

The Court

concludes that the purported lack of statutory authority provides no basis for
disqualification here, particularly given Bass’s lack of standing and personal injury.

Further, Bass fails to show a reasonable probability that any actual or possible
conflict will occur. Rule 1.06 prohibits a lawyer from representing a person when the
representation “reasonably appears to be or become adversely limited by the lawyers or
law firm’s responsibilities to another client or to a third person.”

Tex. Rules Disciplinary

P.R. 1.06(b)(2), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G, app. A-1.
Bass maintains that TTUHSC and Gibson have an actual conflict, so the OAG
cannot represent both parties without violating Rule 1.06. Dkt. No. 46 at 11. Bass has
sued TTUHSC under the Americans with Disabilities Act (ADA) and Rehabilitation Act
of 1973 (RA) for disability discrimination.

Dkt. No. 14. He also sues Gibson

individually under 42 U.S.C. § 1983 for violations his due process rights and retaliation.
Id. TTUHSC seeks dismissal of the ADA and RA claims based on sovereign immunity

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and for failure to state a claim, and Gibson asserts the defense of qualified immunity as to
the § 1983 claims.

Dkt. No. 27.

Bass argues that there is an actual conflict because “TTUHSC’s interest is to show
Gibson acted independently.

Gibson’s interest is to show TTUHSC structured, approved,

and directed the arrangement[.]” Dkt. No. 46 at 12. Bass reaches this conclusion based

on cases where the same attorney represented a municipal entity in defense of a Monell
claim and the individual officers in defense of constitutional violations. See id. at 11-12;
Dkt. No. 51 at 4~7. In Bass’s view, the AAG failed to raise Gibson’s strongest defense in
Defendants’ motion to dismiss: “that TTUHSC knew about and ratified his dual role” as
hearing officer and legal advisor on certain issues. Dkt. No. 46 at 6, 13. Bass implies

this must have been because TTUHSC has incentive to show that Gibson acted
independently. See id. at 12; see Dkt. No. 51 at 5.
This is a speculative risk of conflict. The assertion of sovereign and qualified

immunities do not require TTUHSC or Gibson to take adverse positions. Nor is there a
significant risk that Gibson’s representation will be materially limited by the OAG’s
responsibility to TTUHSC.

Bass has not sued TTUHSC under § 1983, Dkt. No. 14.

And as Bass repeatedly emphasizes, Gibson is an independent contractor whom the state
apparently will not indemnify regardless of whether he was acting in the scope of the
contract. Dkt. No. 46 at 8-10.

Whether Gibson acted within or outside the scope of

employment does not resolve the qualified immunity defense, which requires the Court to
evaluate whether (1) Gibson violated Bass’s First Amendment or due process rights, and

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(2) whether those rights were clearly established at the time of the violations.!

Thus,

unlike a case where a municipal liability claim is asserted alongside a § 1983 claim
against an individual officer, and the parties’ defenses may diverge to avoid liability,
there is no inherent risk here. See Dunton v. Suffolk Cnty., 729 F.2d 903, 907 (2d Cir.
1984) (observing that “[a] municipality may avoid liability by showing that the employee
was not acting within the scope of his official duties, because his unofficial actions would

not be pursuant to municipal policy[,]” while an employee may avoid liability by
showing that he acted “pursuant to an official policy,” so “he can at least shift part of his

liability to the municipality”).
Bass also alleges that the OAG did not acknowledge Gibson’s “dual role”—that he
serves as outside legal counsel for TTUHSC and as a disciplinary hearing officer in the
instant case—which allegedly demonstrates a conflict. Dkt. No. 46 at 12—13; 51 at 5-6.
But even assuming Gibson has a “dual role,” as Bass claims, he fails to explain why or
how that has or will lead to divergent interests.

Dkt. No 46 at 12-13; 51 at 5-6.

And the

Court can discern none, and certainly none that are so plain and obvious as to require

disqualification.

' Bass argues that the OAG did not “invoke” Filarsky v. Delia on Gibson’s behalf in asserting the defense

of qualified immunity. Dkt. Nos. 46 at 11; 51 at 6. Filarsky held that individuals hired by a government
to do its work are entitled to qualified immunity, even if they do not perform that work full-time. 566
U.S. 377, 393-94 (2012). Thus, regardless of whether Gibson is an independent contractor or state
employee, he may assert the defense of qualified immunity, as he did. See Dkt. No. 27 at 12-19, The

absence of a citation to Filarsky does not evince a conflict, especially since Bass does not dispute that
Gibson may raise the defense. See Dkt. No. 33; see also Dkt. No. 46 at 11 (acknowledging that “Gibson
may assert qualified immunity” but wrongly claiming that “[h]e must retain his own counsel to do so”).

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Neither is TTUHSC and Gibson’s unified defense evidence that the dual

representation has limited the AAG’s ability to defend Gibson. See Surratt v. MeClaran,
234 F. Supp. 3d 815, 822 (E.D. Tex. 2016) (observing that “the [d]efendants are capable
of arguing an alternative position that would pit the [c]ity against its officers is not
evidence of a conflict of interest”); Muniz v. Re Spec Corp., 230 F. Supp. 3d 147, 155
(S.D.N.Y. 2017) (acknowledging that “the mere possibility of a legally cognizable claim
between or among a group of jointly represented clients does not require disqualification

of their counsel”). Finally, Bass’s contention that there is an obvious conflict because the
AAG?’s briefing was inaccurate or contained errors is frivolous.

Dkt. No. 51 at 6-7.

Imperfect briefing does not import a conflict of interest.
Bass has failed to show an actual or probable conflict. See Dkt. No. 46 at 12-13.
Disqualification of the OAG or AAG is not warranted.
C. The Court declines to disqualify the OAG and AAG,
Regardless of whether Bass has standing, the Court retains inherent authority to
control the proceedings before it, which includes regulating attorneys’ professional

conduct. E.g., Gopman, 531 F.2d at 266 (explaining that “lawyers are officers of the
court” and “the courts have the inherent authority to regulate their professional conduct”);

Martin v. Affordable Care, LLC, NO. 21-0585, 2023 WL 4875878, at *4 (W.D. La. July
31, 2023) (observing that “the Fifth Circuit permits standing for third parties to raise
conflicts premised on the well-settled principle that district courts have the inherent duty
and responsibility to supervise the conduct of attorneys who appear before them.” (citing
Brown & Williamson, 563 F.2d at 674 and Gopman, 531 F.2d at 264)).

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The Court declines to disqualify Defendants’ counsel based on its inherent
authority.

There is no actual conflict. Requiring “the withdrawal of [Gibson’s] counsel

of choice” based on unsupported conjecture is more likely to undermine the public’s

confidence in the legal system rather than bolster it. U.S. Fire, 50 F.3d at 1317. The
Court will not divest Gibson of his counsel of choice. Should any conflict become
apparent, the Court trusts that the attorneys within the OAG and AAG, as officers of the
Court, will act in accordance with the rules of professional conduct.

4.

Conclusion
For the reasons discussed above, the Court DENIES Bass’s motion.

SO ORDERED on July 4

Dkt. No. 46.

2026.

AMANDA ‘AMY? R. BURCH

UNITED STATES MAGISTRATE JUDGE

11

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