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MONIQUE RATHBUN § § v. § § DAVID MISCAVIGE, RELIGIOUS § TECHNOLOGY CENTER, CHURCH § OF SCIENTOLOGY INTERNATIONAL, § STEVEN GREGORY SLOAT, AND § MONTY DRAKE § IN THE DISTRICT COURT 207th JUDICIAL DISTRICT
COMAL COUNTY, TEXAS
DEFENDANT CHURCH OF SCIENTOLOGY INTERNATIONAL’S MOTION TO DISQUALIFY PLAINTIFF’S COUNSEL TO THE HONORABLE JUDGE OF SAID COURT: Defendant Church of Scientology International (“CSI”) requests, in the interest of justice, that this Court disqualify counsel for Plaintiff, Ray Jeffrey and A. Dannette Mitchell, Jeffrey & Mitchell, P.C.; Marc F. Wiegand, The Wiegand Law Firm, P.C.; and Elliott S. Cappuccio, Pulman Cappuccio Pullen & Benson, LLP, from further representation of Plaintiff Monique Rathbun for improperly using confidential and attorney client privileged information in violation of Texas Disciplinary Rules and law. This unethical conduct is all the more serious because Plaintiff’s counsel were the subject of a similar motion to disqualify in a recent action in San Patricio County which was settled before the motion was heard and decided. Plaintiff’s counsel have chosen to ignore that prior notice and history, thus committing knowing and intentional violations of the Disciplinary Rules to seek an unethical and prohibited advantage. In support of this motion, this Defendant shows as follows: 1. The Plaintiff initially filed suit against five Defendants (David Miscavige,
Religious Technology Center, Church of Scientology International, Steven Gregory
Sloat, and Monty Drake) alleging that they had intentionally inflicted emotional distress on her, had tortiously interfered with her contract of employment, and had invaded her privacy. 2. On August 23, 2013, Defendants David Miscavige and Religious
Technology Center filed Special Appearances challenging the jurisdiction of Texas courts over their persons. On September 4, 2013, in response to those Special Appearances, counsel for Plaintiff filed a First Amended Petition, asserting without change the Plaintiff’s alleged causes of action, but adding: 1) Two new Defendants (California residents Dave Lubow and Ed Bryan); Inserting 21 new paragraphs (numbered 16-36) under the section heading “Additional Jurisdictional Facts”; and Attached a 9-page Affidavit of the Plaintiff’s husband, Mark “Marty” Rathbun.
The 21 paragraphs comprising the “Additional Jurisdictional Facts” are
largely a re-cycled version of the false allegations previously advanced by the Plaintiff’s same attorneys in the suit they filed against Defendants David Miscavige, Religious Technology Center, and this Defendant in Cause No. S-12-5645CV-C, Paul Marrick, et al v. Religious Technology Center, et al, in the 343rd Judicial District Court of San Patricio County, Texas, approximately one year ago. In addition to being false, those allegations are legally unavailing as will be clearly demonstrated at the hearing on the Special Appearances.
For purposes of this motion, the Court is requested to focus on the third
change incorporated into the Plaintiff’s First Amended Petition in this case—the Affidavit of the Plaintiff’s husband, Mark “Marty” Rathbun which was attached to the amended pleading. 5. Mark Rathbun is a former member and official of the Church of
Scientology who was relieved of his duties in 2003 for gross misconduct. Since leaving the Church in 2004, he has embarked on a full-time campaign of attacks against the Church and David Miscavige, the ecclesiastical leader of the Scientology religion -- the very person who relieved Mr. Rathbun of his duties. 6. The Affidavit of Mark Rathbun filed by Plaintiff’s counsel as an attachment
to the Plaintiff’s First Amended Petition purports to establish that torts allegedly committed against Mark Rathbun’s wife, the Plaintiff, could not have occurred unless Defendants Religious Technology Center and David Miscavige had approved them. In his efforts to convince this Court of that claim, Mark Rathbun betrays the fiduciary duties he owes to his former employer and eagerly and deliberately broadcasts his corrupted and false version of its confidential and privileged information. 7. According to paragraph 25 of Mark Rathbun’s affidavit, he “oversaw every
aspect” of litigation involving David Miscavige for “22 years, from 1982 to 2004”. 8. According to paragraph 26 of the affidavit, “For more than 20 years” he
“directed … criminal and civil legal matters” on behalf of a division of this Defendant. 9. In paragraphs 31 to 36 of his affidavit, Mark Rathbun repeatedly discloses The alleged
information which is facially and overtly attorney-client privileged.
communications described are those between Mark Rathbun, as an employee of the Religious Technology Center (“RTC”), and the Jenkins & Gilchrist attorneys for RTC regarding what Mark Rathbun calls the “Texas litigation plan”. 10. As heinous a violation of his fiduciary duties as Mark Rathbun’s actions
are, more so are those of Plaintiff’s counsel. In violation of their ethical and professional duties as officers of the Court, at a minimum, they have intentionally and deliberately published Mark Rathbun’s facially offensive affidavit as a public record in the files of this Court. 11. Compounding those attorneys’ unethical action in this case is the fact that it
is a repetition of what they did approximately a year ago in the San Patricio County case described in paragraph 3 of this motion. In that case, the same attorneys filed pleadings which broadcast confidences they themselves described as “top-secret” and which their clients were forbidden to reveal under both civil and criminal law. A true and correct copy of the motion to disqualify filed against the attorneys in that case is attached as Exhibit A to this motion and is incorporated herein by reference. It is in this very case in which Mr. Rathbun, actually introduced Mr. Jeffrey to the plaintiffs to bring the suit, and was then made a sham defendant by the same three attorneys in order to obtain Texas jurisdiction in the action -- which was otherwise composed entirely of out-of-state parties. . 12. The attorneys responded to that motion to disqualify by immediately (the
very next day) non-suiting their clients’ claims against the Defendant who filed the
motion to disqualify to moot the motion. (Copy of non-suit attached as Exhibit B) The case was thereafter settled as to the remaining Defendants. 13. Prior to that misconduct, in the Bexar County case of Church of Scientology
International Flag Service Organization, Inc. v. Debra J. Baumgarten, et al, Cause No. 2012-CI-01272, in the 150th District Court of Bexar County, Texas, one of the Plaintiff’s present attorneys, Ray Jeffrey, designated Mark Rathbun as a witness he intended to call at a hearing in that case. In doing so, Mr. Jeffrey described Mark Rathbun as having been “over the legal department” of the Church of Scientology and there is every reason to believe that Mr. Jeffrey intended to use him to betray confidential and privileged information of the Church had he been permitted to do so. A copy of the relevant portion of the Hearing on Motion for Temporary Injunction from that case is attached as Exhibit C to this motion. 14. The conduct of Plaintiff’s counsel is unprofessional, unethical and immoral,
This is not a situation where an attorney comes into possession of the adverse party’s confidential and/or privileged information and cannot immediately recognize it as being such. To the contrary, this is a situation where attorneys seek to profit by acting in collusion with a former church executive in legal matters, and offensively using information which is overtly confidential and privileged and cannot be mistaken as being anything else. Accordingly, this Defendant requests, in addition to other remedies which may be pursued, the immediate disqualification of Plaintiff’s counsel from further representation.
ARGUMENTS AND AUTORITIES 15. With respect to disqualification, Texas law distinguishes between
confidential information1 acquired by lawyers and non-lawyers in their prior employment. As to both, there is an irrebuttable presumption that they obtained
confidential information from their earlier client/employer during the course of their representation/employment. Phoenix Founders, Inc. v. Marshall, 887 S.W.2d 831, 833 (Tex. 1994) (attorneys); In re American Home Products Corp., 985 S.W.2d 68, 74 (Tex. 1984) (non-attorney employees). 16. Such an irrebuttable presumption is necessary “to prevent the moving party
from being forced to reveal the very confidences sought to be protected.” American Home Products, 985 S.W.2d at 74. 17. A second irrebuttable presumption arises as to attorneys; it is irrebuttably
presumed that they will share the confidential information they hold from their prior representation with the members of their second/new firm. S.W.2d at 834. 18. In contrast, the presumption of sharing information with the second/new Phoenix Founders, 887
law firm is rebuttable as to non-attorneys. Phoenix Founders, 887 S.W.2d at 834. 19. Accordingly, the case law in this area has dealt with whether the
presumption of sharing information by the non-attorney was or was not adequately
“Confidential information” is very expansive and is not limited to “secret” or “privileged” information. Instead, it is defined by Texas Disciplinary Rule of Professional Conduct 1.05(a) as including both attorney-client privileged information and “unprivileged client information”. “Unprivileged client information” is defined as “all information relating to a client or furnished by the client … during the course of or by reason of the representation of the client” (emphasis added). See also Clarke v. Ruffino, 819 S.W.2d 947, 950 (Tex. App.—Houston [14th Dist.] 1991) (“confidential information” is expansively defined).
rebutted by the accused attorney. But when, as here, it is not a matter of a mere “presumption” that confidential information has been imparted by the disloyal former employee to the lawyers for the adverse party, but is instead conclusively proven to have occurred, disqualification of the attorneys is mandatory. 20. That is the direct holding of our Supreme Court in In re Columbia Valley
Healthcare System, 320 S.W.3d 819 (Tex. 2010), quoting its earlier holding in Phoenix Founders, Inc. v. Marshall, 887 S.W.2d 831 (Tex. 1994): “[Absent consent from the prior client/adverse party—something absolutely not present here] disqualification will always be required under some circumstances, such as (1) when information relating to the representation of an adverse client has in fact been disclosed ….” In re Columbia Valley Healthcare System, 320 S.W.3d at 825 (emphasis added). 21. There can be no dispute that Mark Rathbun, by his own sworn admission,
was a non-attorney employee engaged in the Defendants’ legal affairs for many years. He has now improperly and impermissibly shared the Defendants’ confidential and privileged information acquired by him while in their employ with Plaintiff’s counsel and that Plaintiff’s counsel is now attempting to use it against these Defendants in this case. That confidential and privileged information has been reduced to writing and has been deliberately filed by Plaintiff’s counsel in this case. 22. Although no further argument is required in light of the disqualification
mandated by the direct holdings of the Supreme Court, this Defendant does note that a “Bradley Manning” type defense or excuse (that is, revealing the confidences of the Church serves some supposed greater good) is not the law. 7
In paragraph 10 of his affidavit, Mark Rathbun alleges that he was the
“Director and the President of [Defendant] RTC”. As such he owed fiduciary duties to his employer. E.g., Kinzbach Tool Co. v. Corbett-Wallace Corp., 160 S.W.2d 509, 51314 (Tex. 1942) (employees owe fiduciary duties to their employers and are obligated to act in their employer’s interests). 24. When a fiduciary/former employee is involved in litigation against his
former beneficiary/employer, the fiduciary/former employee may not even proceed with the lawsuit if doing so requires him to reveal confidential information in order to prove his claims. Willy v. Coastal States Management Co., 939 S.W.2d 193, 200-201 (Tex. App.—Houston [1st Dist.] 1996), writ dism’d as improvidently granted, 977 S.W.2d 566 (Tex. 1998) (“We have held that [the plaintiff fiduciary] can maintain a su it for wrongful termination only if his claim can be proved without any violation of his ethical obligation to respect client confidences and secrets”). 25. Texas Disciplinary Rule of Professional Conduct 4.04(a) provides that “a
lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third party, or use methods of obtaining evidence that violate the legal rights of such person.” (emphasis added). Plaintiff’s counsel have violated Rule 4.04(a) by improperly using evidence that violates the rights of the Defendants to maintain their confidences and privilege. If not disqualified, Plaintiff’s counsel will continue to further abuse Defendants’ confidential and privileged information. Under the direct holdings of our Supreme Court, this Court must exercise its power to prevent such
threat and further and additional misuse from occurring by disqualifying Plaintiff’s counsel from further representation. WHEREFORE, PREMISES, ARGUMENTS, and AUTHORITIES
CONSIDERED, Defendant Church of Scientology International prays that this Court, after hearing on this motion, disqualify Plaintiff’s counsel from further participation in this case, further praying for such other and further relief as is just or appropriate in the circumstances. Respectfully submitted,
DAVIS, CEDILLO & MENDOZA, INC. McCombs Plaza, Suite 500 755 E. Mulberry Ave. San Antonio, Texas 78212 (210) 822-6666 - Telephone (210) 822-1151 – Facsimile firstname.lastname@example.org email@example.com By: /s/Ricardo G. Cedillo RICARDO G. CEDILLO State Bar No. 04043600 LES J. STRIEBER, III State Bar No. 19398000 and CLEMENS & SPENCER 112 E. Pecan St., Suite 1300 San Antonio, Texas 78205-1531 (210) 227-7121 – Telephone (210) 227-0732 – Facsimile firstname.lastname@example.org By: /s/George H. Spencer, Jr. GEORGE H. SPENCER, JR. State Bar No. 18921001 ATTORNEYS FOR DEFENDANT, CHURCH OF SCIENTOLOGY INTERNATIONAL
CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing document was served in the manner indicated below on this 9th day of September, 2013, to: Mr. Ray Jeffrey Ms. A. Dannette Mitchell Jeffrey & Mitchell, P.C. 2631 Bulverde Rd., Suite 105 Bulverde, TX 78163
Mr. Lamont A. Jefferson Haynes & Boone, LLP 112 E. Pecan St., Suite 1200 San Antonio, TX 78205-1540
via Facsimile No. (210) 554-0413 Ms. J. Iris Gibson Haynes & Boone, LLP 600 Congress Ave., Suite 1300 Austin, TX 78701
via Facsimile No. (830) 438-4958 Mr. Marc F. Wiegand The Wiegand Law Firm, P.C. 434 N. Loop 1604 West, Suite 2201 San Antonio, TX 78232
via Facsimile No. (512) 867-8650
via Facsimile No. (210) 231-0004 Mr. Elliott S. Cappuccio Pulman Cappuccio Pullen & Benson, LLP 2161 N.W. Military Hwy., #400 San Antonio, TX 78213 email@example.com via Facsimile No. (210) 892-1610
/s/George H. Spencer, Jr. George H. Spencer, Jr.