author: CHARLES D. SUSANO, JR., J.,

text:
    Michael CROSBY v. Carolyn S. HOLT, et al.
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    Nov. 4, 2009 Session.
    Dec. 28, 2009.
    Permission to Appeal Denied by Supreme Court Aug. 25, 2010.

      Robert L. Jolley, Jr., Knoxville, Tennessee, for the appellant, Michael Crosby.
    H. Scott Reams, Morristown, Tennessee, for the appellees, Carolyn S. Holt, Charles Cross, Joe Gibson, Jr., Roger Greene, James Grigsby, Janice Haun, Clyde Kinder, members of the Hamblen County Board of Education, and Dale P. Lynch, Director of the Hamblen County Department of Education.
   OPINION

CHARLES D. SUSANO, JR., J.,

delivered the opinion of the court,

in which HERSCHEL P. FRANKS, P.J., and JOHN W. McCLARTY, J., joined.

Michael Crosby (“the Teacher”), a public school teacher, appealed his termination by the Hamblen County Board of Education (“the Board”) to the trial court pursuant to Tenn.Code. Ann. § 49-5-513 (2009). The court upheld the discharge as “warranted on the grounds of unprofessional conduct and insubordination.” The Teacher appeals. We affirm.

I.

A.

On March 16, 2007, Dale P. Lynch, Director of the Hamblen County Department of Education (“the Director”), recommended in a written memorandum that the Board immediately dismiss the Teacher based upon the statutory grounds of “unprofessional conduct and insubordination.” See TenmCode Ann. § 49-5-511(a)(1) and (2) (2009) (“No teacher shall be dismissed or suspended except ... [for] incompetence, inefficiency, neglect of duty, unprofessional conduct [or] insubordination.”). The memorandum included a factual background that related the recommendation to the Teacher’s allegedly inappropriate relationship with a minor female student (“the Student”), emails sent over the school’s system to a married female teacher, and allegedly inaccurate and misleading information the Teacher supplied to the Director during his investigation of the allegations. In a meeting held March 19, 2007, the Board dismissed the Teacher. Pursuant to the Teacher’s request, the Board held an evidentiary hearing on May 9 and 10, 2007, to consider charges of “conduct unbecoming to a member of the teaching profession/unprofessional conduct and insubordination.” After hearing evidence, the Board voted unanimously to sustain the dismissal, and the Teacher was given written notification of the Board’s decision. The Teacher appealed to the trial court, which, according to the procedure established in TenmCode Ann. § 49-5-513, limited its review to the “written record of the hearing before the board,” including exhibits. The court sustained the dismissal in a judgment that set forth specific findings of fact and conclusions of law. Those factual findings, paraphrased for the sake of brevity, are helpful to give this controversy context.

B.

The Teacher’s son reported that his father was having an inappropriate relationship with the Student, one of the son’s female classmates. Upon receiving the report, the Director contacted the Student’s parents. The parents made a formal complaint against the Teacher based on the latest report and a questionable history between the Teacher and the Student that dated back to 2005. The Director investigated the complaint. His investigation included three recorded and transcribed interviews with the Teacher.

The Teacher became acquainted with the Student in the fall of 2004 when she was a sophomore in his world geography class. He employed the Student in 2005, following which her parents forced her to quit when reports of a sexual relationship between her and the Teacher were made. The Student’s father did not believe the reports and allowed her to resume working for the Teacher. When the allegations started a second time, the parents told the Student she could no longer work for the Teacher and that she was not to have any communication with him. The Teacher was aware of the parents’ wishes. Nevertheless, the Teacher later employed the Student under the guise that she was working for his mother. She did clean house for the Teacher’s mother, but she also cleaned the Teacher’s house, which was situated very near his mother’s. During this time, the Teacher left his door unlocked so the Student could come and go without a key. In addition to housekeeping, she ran errands for the Teacher.

One specific area of the investigation that touched upon both the teacher-student relationship and the employer-employee relationship was the school’s “job shadowing” program. The Student participated in the program in February 2005 and listed the Teacher as the employer she was “shadowing.” The Teacher denied that he participated in the program in the year 2005 and claimed he would not have missed the opportunity for an easy day’s work. However, personnel records indicated that the same day the Student had been out of school in the job shadowing program, February 4, 2005, the Teacher had taken leave from his regular classroom duties.

In this time frame, the Teacher resided in the backroom of his business. It was there that a male classmate of the Student reported seeing the Teacher and the Student hug and kiss on the lips.

The Teacher denied — as did the Student — that the relationship with the Student was sexual. However, four different classmates of the Student plus a teacher testified that the Student had told them that she was having sex with the Teacher.

The Teacher was also asked in the interviews with the Director about emails he had sent over the school computer network to Kelly Bowen, a married and apparently attractive female teacher at the same school where the Teacher worked. The school reserves the right to monitor all activity on its network and determine what is appropriate and what is not. Sexually oriented materials and messages are prohibited, as are obscenity and vulgarity. The Director testified that the emails to Bowen were offensive, defamatory and sexually suggestive. Bowen did not testify. The Teacher did not testify at the formal hearing but admitted in the interviews that he sent the emails. The Teacher denied, however, that the emails contained any offensive or sexually suggestive material.

During the investigation on February 9, 2007, the Director instructed the Teacher not to have any contact with the Student. On February 12, 2007, the Teacher took a phone call from the Student and advised her that she did not “legally” have to give the voice stress test being requested by police investigators.

C.

Notwithstanding the trial court’s findings, some of the evidence needs additional perspective. One such area is the emails to Kelly Bowen. The chain of emails started off with an inquiry from the Teacher to Bowen about Sandy, a friend of Bowen, that the Teacher had dated briefly after being introduced by Bowen. Bowen replied to the inquiry by stating that “David [ (, my husband,) ] and I have had a few issues lately, and [Sandy has] been helping me work through those.... If you are curious about Sandy, she’s fine and busy as usual.” The Teacher’s reply to the comment about “issues” with Bowen’s spouse offered, “Let me know if I can lend a helping hand anywhere ... You know me you are the pick of the litter.” To the comment about curiosity regarding Sandy, the Teacher responded, “I was just curious. More curious about you but curious nonetheless.... [Sandy] is one hottie (but nowhere in YOUR league of course).” The Teacher then mentioned his recent need for a date and stated:

I have my eye on that spec ed teacher from Kingsport or Crockett. Her room is near yours.... The only thing I hate is actually having an open relationship with a co-worker. Now if things could be kept hush hush I would be game. See the delimna? ... Sandy ... is so smart. But crazy to some degree. She hates certain positions ... etc. You know.... LOL.
Let me know what you think. I hate to ask but you did so good last time. Sandy was a M LF. You did very well.... You know how to contact me. Don’t be shy. I won’t bite or anything. Like I said if I can help in anyway let me know.

When Bowen did not reply for a lengthy time, the Teacher sent a short email which included the following: “You know what I am doing right? Its nothing personal. LMK.” Bowen replied with puzzlement as to what the Teacher was doing when he sent the email confessing that “[ejither the blonde is really showing, or I have too many other things cluttering my mind. I thought you wanted to know about Sandy. What do you mean it’s not personal?” The Teacher then got a little bolder in his innuendos and started his next email to Bowen by asking, “Does the carpet match the curtains? (Just a blonde joke).” As to the subject of what he was doing when he sent the earlier email, the Teacher stated

I wish I had the nerve to tell you. But I don’t. I don’t want to offend you.... Think deeper on the subject and reread the one big email I sent. It should be obvious. I’m not sure I have left enough hints.... Maybe I will get up the courage or you will figure it out. Think.

When asked about these emails in the interviews, and especially the last interview, the Teacher placed a remarkably innocent spin on them. “M LF,” according to the Teacher, means a mother who looks fine. The question about the carpet matching the curtains supposedly had no meaning that the Teacher could remember. As to all the hints and discussion about what the Teacher was doing when he sent one of the emails, he had also reportedly forgotten. The talk about Sandy and “positions” supposedly referred to jobs.

The Director testified live at the hearing concerning his investigations and findings. He testified that the Teacher misled him in his investigation in numerous respects. The Teacher tried to deny knowing that the Student’s parents did not want her working for him and why, but finally confessed in the third interview that he had been informed by the Student of her parents’ wishes. The Teacher denied any sexual innuendos in the email messages, but the Director saw them as sexually suggestive. The Teacher denied any recall of whether he “job shadowed” the student and claimed that he would not have missed the opportunity for an easy day’s work. On this subject, the Teacher was contradicted by the documentary evidence and also by the testimony of the Student. The Student, hard pressed to deny the written form, claimed that she stayed home with her mother’s complete knowledge and permission during the daytime hours of job shadowing and completed the assignment during evening hours. The Student’s mother, however, testified that the Student was not home during the daytime hours, but was obviously with the Teacher whom the mother had learned took leave the day of job shadowing. Also, the mother testified that in giving permission for her daughter to participate in job shadowing, she thought other students were going to be present and did not know that her daughter was going to have an opportunity to be alone with the Teacher.

The Student’s mother also testified of being misled by the Student about working for the Teacher and his mother. The Student told her mother that she was working for the grandmother of a friend. The Student admitted as much at the hearing but testified that she did not see it as any of her parents’ business where she worked. The Student’s mother also testified that her daughter retaliated against their resistance to the Teacher by calling the Tennessee Department of Children’s Services on them and reporting mental abuse.

At the time of the hearing, the Student ' was completely estranged from her parents. She moved out of their home a few days after her eighteenth birthday, and moved into the home of the Teacher’s mother. The Student claimed to be paying rent, but always in cash and she had never received a receipt.

As previously noted, given that both the Teacher and the Student denied a sexual relationship, most of the testimony that their relationship was sexual in nature came in through classmates of the Student or teachers at the school who stated, in essence, that the Student told them she was having sex with the Teacher. The first such witness was a female friend of the Student who, after hearing rumors, “asked [the Student] point blank if she had sex with him, and she said yes.” The female friend remembered the approximate time and the exact place of their conversation.

It was during the friend’s testimony that counsel for the Teacher launched a volley of objections to what he regarded as attempts to impeach the Student with hearsay testimony. Numerous objections were overruled on the advice of acting counsel for the Board who advised that the Tennessee Rules of Evidence do not apply to administrative proceedings and that the Board should treat the objections as continuing and allow the evidence to come into the record for such weight as the Board saw fit to assign to it. One such objection prompted the following exchange:

[Counsel for the Board]: First, I’m going to respond to a question I just received from a member of the Board, which is could we have counsel removed. And the answer is yes. This hearing may continue without ... his presence, and the Board can make that decision without the attorney present.
[Counsel for the Teacher]: And if the advice from counsel for the Board is aware that person’s are required to object to proceedings before they come in because the appellate courts have said that issues are waived, that means given up, it they are not objected to in these proceedings.
[Counsel for the Board]: I think you’ve already made a number of blanket objections very clear. And I have advised the Board that that may continue. This meeting can also be adjourned right now by the Board, and I can advise the Board to adjourn this meeting if that’s most appropriate. I think your objection has been duly noted a blanket objection to what you consider hearsay. And my advice to the Board has been repeatedly, and I think you are very clear on it, the Rules of Evidence do not apply. And I have advised the Board to build a record.

Counsel for the Teacher was allowed to remain in the hearing room. The Board continued to completion and counsel continued to object, though in somewhat of a less interrupting manner than with the first classmate witness.

The next student witness was a male classmate who testified that the Student told him she “had a steady sexual relationship with [the Teacher].” The one difference in this male classmate’s testimony was that he was able to testify of seeing physical contact between the Student and the Teacher that they both denied. The male classmate testified of driving the Student to meet a couple of friends when she asked to stop by the Teacher’s place of business. According to the witness, the Student went into the backroom of the structure, where the Teacher resided. The witness became impatient and walked toward the backroom. It was then that he saw the Student and the Teacher hugging and kissing on the lips.

The Student’s ex-boyfriend testified also. He stated that he terminated his relationship with the Student after she told him she had a sexual relationship with the Teacher.

The Student’s “best friend” — as that relationship existed at one point in time — ■ was called as a witness. She testified that the Student told her about escalating feelings for the Teacher that resulted in a sexual relationship. She did not find out any details because she did not want to know.

Ann Huckaby, a teacher for 40 years, testified that she had counseled with the Student. First, the Student denied a sexual relationship. Later, when very apparently distraught over the Teacher’s situation, the Student admitted to Huckaby that the relationship was sexual in nature.

D.

Based on the trial court’s factual findings, it reached the following legal conclusions which we will repeat verbatim, except for deletion of paragraph numbers and record citations:

The notice of charges sent to [the Teacher] by Director Lynch are “sufficient in substance and form to fairly apprise [the Teacher] of the charge against him and enable him to prepare his defense in advance of the hearing.” Legal sufficiency of the notice is further supported by the fact that [the Teacher] was interviewed on February 9 and 21, 2007, concerning the allegations and concerns of the child’s parents, in the presence of [the Teacher’s] TEA representative, and a third interview on March 12, 2007 in the presence of his able counsel. The relationship between [the Teacher and the Student] was inappropriate and exposed the [S]tudent to embarrassment and disparagement. [The Teacher] failed to take reasonable efforts to protect the [S]tudent from conditions which were harmful to her health and safety. [The Teacher’s] conduct constitutes a violation of the Code of Ethics of the Tennessee Education Association and as such is conduct unbecoming a member of the teaching profession as defined by T.C.A. § 49-5-501(3).
The series of emails sent by [the Teacher] to Kelly Bowen did not violate the Board of Education policies and does not constitute insubordination within the meaning of T.C.A. § 49-5-501(7). The communications in issue were [the Teacher’s] private communications with co-workers made on his own personal time. Although made on the school’s computer system, the content of the emails was not disruptive. There is no proof that [the Teacher’s] e-mails adversely affected the recipient’s performance or the harmony of the workplace. The recipient, who did not testify in these proceedings, did not complain about receiving the e-mails, but instead participated and responded freely.
[The Teacher’s] advising [the Student] that she did not have to take a voice stress analysis test after being instructed by Dr. Lynch not to have further contact with [the Student] constitutes insubordination within the meaning of T.C.A. § 49-5-501(7)(A).
[The Teacher’s] denial of his involvement in the job shadowing program during interviews with Dr. Lynch during the course of Dr. Lynch’s investigation was false, misleading, and dishonest, and, as such, is both insubordinate and conduct unbecoming to a member of the teaching profession.
The record of testimony by [the Student] is contradicted by the record of testimony of Male Student No. 3 that he observed [the Teacher and the Student] embracing and kissing. Further, [the Student] told Ms. Huckaby [and four classmates] that there was a sexual relationship between her and [the Teacher]. The dismissal of [the Teacher] is warranted on the grounds of unprofessional conduct and insubordination.

II.

The Teacher raises the following issues on appeal:

Whether the evidence admitted and the conduct attributed to [the Teacher] justified his termination on the grounds of insubordination.
Whether the evidence admitted and the conduct attributed to [the Teacher] justified his termination on grounds of unprofessional conduct.
Whether the decision of the Board to terminate [the Teacher] was arbitrary, capricious, and unsupported by reasonable grounds.
Whether [the Teacher] was afforded due process under the Tennessee Constitution and the Tennessee Teacher Tenure Act.
a. Whether [the Teacher] received notice sufficient in substance and form to fairly apprise him of the charges against him and enable him to prepare his defense in advance of the hearing.
b. Whether the Board erroneously admitted and relied upon inadmissible and unreliable hearsay evidence.
c. Whether the Board violated [the Teacher’s] right to have representation by threatening to remove his counsel during the hearing.
d.Whether [the Teacher] received a full, complete and impartial hearing before the Board.
Whether the Board’s termination of [the Teacher] violated his rights of freedom of speech, freedom of religion, and freedom of association as guaranteed under the United States and Tennessee Constitutions.

III.

Our review of constitutional and other such legal issues that arise during administrative proceedings is de novo. See Richardson v. Tenn. Bd. of Dentistry, 913 S.W.2d 446, 458 (Tenn.1995)(trial court can take proof and determine constitutional issues). Otherwise, judicial review of the administrative termination of a teacher is limited as stated in Ripley v. Anderson County Bd. of Educ., 293 S.W.3d 154, 156 (Tenn.Ct.App.2008).

Tennessee Code Annotated § 49-5-513 affords a tenured teacher whose employment has been terminated by a school board the right to chancery court review of the school board’s decision. The chancery court’s review, as contemplated by this statute, is a de novo review wherein the chancery court does not attach a presumption of correctness to the school board’s findings of fact, nor is it confined to deciding whether the evidence preponderates in favor of the school board’s determination. Lee v. Franklin Special Sch. Dist. Bd. of Educ., 237 S.W.3d 322, 329 (Tenn.Ct.App.2007). Upon appeal to our Court in a non-jury case such as this one, we review the record de novo with a presumption of correctness as to the trial court’s determination of facts, and we must honor those findings unless the evidence preponderates to the contrary. Tenn. R.App. P. 13(d); Union Carbide v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).

Id. On the question of whether the school board acted illegally or arbitrarily and capriciously, the trial court may take new evidence and make independent findings. Winkler v. Tipton County Bd. of Educ., 63 S.W.3d 376, 381 (Tenn.Ct.App.2001). It is presumed that the actions of school boards are reasonable, and therefore not arbitrary and capricious, unless there is clear evidence to the contrary. Childs v. Roane County Board of Educ., 929 S.W.2d 364, 365 (Tenn.Ct.App.1996). Even if there is a procedural irregularity, unless it is flagrant or prejudicial, we will not interfere with the actions of the school board. Id. at 367.

IV.

A.

We begin with the procedural issues and work our way toward the constitutional issues. The Teacher admits he received a copy of the March 16, 2007, memorandum provided to the Board, but argues that “the notice was insufficient to give [the Teacher] clear and adequate notice of every issue under consideration by the Board.” Specifically, the Teacher argues three deficiencies, ie., failure to identify the student with whom he allegedly had a sexual relationship, failure to identify the witnesses who had been told by the Student that she had a sexual relationship with the Teacher, and failure to identify the allegedly “inaccurate and misleading information” that the Teacher furnished to the Director. All that is required is that the notice be “sufficient in substance and form to fairly apprise the teacher of the charge against him and enable him to prepare his defense in advance of the hearing.” Potts v. Gibson, 225 Tenn. 321, 469 S.W.2d 130, 133 (1971).

We agree completely with the trial court’s reasoning on this issue, ie., that the detailed memorandum and the interviews conducted well in advance of the hearing adequately informed the Teacher of the conduct at issue. In the very first interview, the identity of the Student was the first thing mentioned. In another, the parents of the Student were present. As to the student and teacher witnesses, it is clear from the interviews that the Teacher had been questioned by the police in 2005 and knew the identity of some, if not all, of the witnesses. Further, by the time of the last interview, the Teacher knew the substance, if not the source, of the testimony. In fact, the initial memorandum of the Director states that the Student had confided in a number of other students and teachers. It also appears that, by the date of the hearing, the Teacher had free access to the Student who resided with his mother and he would have been able to ask her about statements made to classmates and other teachers. Even before the formal hearing, it is clear the Student and the Teacher were discussing the investigation because the Teacher told the Student that she did not have to undergo a voice stress test. We also note that counsel for the Teacher had apparently tried to interview some if not all of the witness, because he cross-examined them as to why they would not take questions from his investigator. As to the false statements, all that was necessary was to read the transcript of the interviews to see areas fertile for matters raising the specter of a lack of credibility.

In his reply brief, counsel for the Teacher makes the slightly different argument that the Board did not make actual findings and a decision as required by Tenn.Code Ann. § 49-5-512. The Teacher relies on Winkler, 63 S.W.3d at 382. Winkler is different than the present case. The charges brought against the teacher in Winkler involved conversion and inappropriate handling of money. Id. at 377. At the end of the proof in Winkler, one board member expressed serious doubts about whether the teacher had done anything wrong other than exercise poor judgment and made a motion that the teacher be suspended rather than terminated. That motion passed. Id. at 880. On appeal this court suggested that a finding of guilt would seem inherent in the punishment of suspension, but such a finding was belied by the discussion and the alternative motion. Id. at 382. Accordingly, we held that the school board’s action did not comply with the requirement that the board make known to the teacher in writing its “findings and decision.” Id. In the present case, there was no equivocation. The vote to uphold the termination was unanimous. The charges were identified and the decision was provided in writing. Accordingly, we hold that the notice of charges as outlined in the March 16, 2007, memorandum from the Director to the Board, as supplemented by the interviews of the Teacher, were sufficient to allow him to prepare his defense. Further, we hold that the findings and decision were legally sufficient under TenmCode Ann. § 49-5-512.

Next, the Teacher challenges the introduction of hearsay evidence of classmates and teacher Huckaby. The Teacher acknowledges that hearsay is admissible in an administrative hearing if (1) it is the type of material commonly relied upon by reasonably prudent persons in the conduct of their affairs and (2) it is corroborated and not the sole evidence of the act. See Tenn.Code Ann. § 4-5-313(1) (2005); Green v. Neeley, No. M2006-00481-COA-R3-CV, 2007 WL 1731726 at *5 (Tenn.Ct.App. M.S., filed June 15, 2007). We believe that prudent members of a board charged with administering the activities of a school and the relationships between its teachers and students would necessarily rely on reports of students and teachers, especially as to matters where the participants in the challenged conduct have a strong incentive and ability to cover their incriminating tracks. We agree that administrative hearings, no less than trials, involve a search for the truth, but we think this type of information, used advisedly, is a tool that can be utilized in the administrative search for the truth. Further, we agree with the Board that there was corroborating evidence from one student who testified that he saw the Teacher and the Student hugging and kissing at the Teacher’s residence in the back of his business. Also, we believe there is other corroborating circumstantial evidence as we will discuss in more detail later. Given corroborating evidence, the testimony was admissible as substantive evidence of sexual activity between the Teacher and the Student. The Teacher’s argument that the hearsay was improper impeachment by inconsistent statements therefore rings hollow.

Another procedural argument that the Teacher makes is that the “threat to remove counsel had a chilling effect on Mr. Crosby’s statutory right to be represented by effective counsel at his dismissal hearing.” The Teacher gives no particulars about how his representation was adversely affected and furnishes no law for the proposition that a discussion such as occurred at the Board hearing is grounds for reversal of an administrative action. We have previously observed that counsel was not removed and continued to participate and object. In the absence of any authority, particulars, or mention of specific prejudice, we are unable to find prejudicial error.

The final pure procedural argument made by the Teacher is that the Board made up its mind in its initial discussion and vote to discharge him before the formal hearing, and that nothing done or said in the hearing was going to change the mind of any board member. The Teacher acknowledges, as he must, that according to our Supreme Court, “the mere fact that both investigative and adjudicative functions have been granted to an administrative body ... does not of itself create an unconstitutional risk of bias in an administrative adjudication.” Cooper v. Williamson County Bd. of Educ., 803 S.W.2d 200, 202-03 (Tenn.1990). We note that the Teacher had the opportunity to develop and present proof of his assertion to the trial court but did not do so. See Winkler, 63 S.W.3d at 381 (trial court may hear new evidence as to whether the decision of the board was arbitrary, capricious or illegal). Since Teacher’s charge that the Board made up its mind before the formal hearing is unsupported speculation, this is not the case for finding an exception. Accordingly, we must presume that the Board fulfilled its duties and hold that the Teacher received a full, complete and impartial hearing. See Cooper, 803 S.W.2d at 203.

We turn now to the various arguments concerning the sufficiency of the proof of unprofessional conduct and insubordination. We believe there was a preponderance of evidence of both, but our approach is a little more direct than that of the trial court. There was compelling proof, albeit largely circumstantial, of a sexual relationship between the Student and the Teacher. It must be understood that we are not, unless required by a higher court, willing to impose a requirement on school boards that they must catch the participants in the act before they can administratively find a teacher guilty of sexual misconduct. There was evidence in this case that the Student was present with the Teacher alone for a long period of time on job shadow day. There was proof that they both tried to shade the facts to cover up their time alone. There was evidence that in the very place where they did their shadowing, they were seen hugging and kissing by one of the Student’s classmates. There was evidence that after the parents made the Student quit working for the Teacher, or so they thought, she or the Teacher or both found a way for her to frequent the Teacher’s residence and business against the wishes of the parents and without their knowledge. Again, there was a misrepresentation to cover up the true facts. It was the Student that made the representation, but, under the circumstances, the Teacher was complicit in the misrepresentation. Also, we are unwilling to place an innocent characterization on the phone conversation between the Teacher and the Student even after he had been instructed and agreed that he would have no contact with the Student. It was not likely pure innocence or a desire to keep the local police force in check that led him to tell her that she did not have to undergo a voice stress analysis. We believe it is much more likely that he was trying in the phone call as he had in other ways to keep his true relationship with the Student from being discovered. Further, we are not convinced that it is pure circumstance and simply a strong student-teacher bond that led the Student to be estranged from her parents and take up residence at the home of the Teacher’s mother.

While we are on the subject of the Teacher’s credibility, we will briefly discuss his emails to a fellow teacher, Kelly Bowen. We do not disagree with the trial court completely, but we do believe that the emails to Bowen were sexually charged and suggestive and that his denials are unbelievable. The question to Bowen, “[d]oes the carpet match the curtains,” carries a sexual connotation that we need not explain. References to Bowen’s friend Sandy as a “M LF” and references to “positions” that Sandy would not consider that caused the Teacher to “LOL,” or laugh out loud, were also suggestive. Finally, we think it unlikely that what the Teacher was doing when he sent the emails to Bowen was innocent and easily forgotten in light of the statements he made at the time. He referred to his actions as being “obvious” and fully revealed by “hints” but something that she could find offensive and that he did not have the courage to say directly. More importantly, we think the Teacher’s explanation of the meaning of these emails, and his denial of a recollection, added to the preponderance of evidence that he was being deliberately false, misleading and dishonest in complete disregard for the investigation. He appears to have decided that the whole investigation was trivial and that he did not need to tell the truth.

Other than as we have discussed above, we fully concur in the trial court’s findings and hold that the evidence preponderates in favor of a finding that the Teacher was guilty of insubordination and unprofessional conduct. The Teacher’s argument that the decision of the Board is arbitrary and capricious is based solely on the proposition that “the Board’s termination ... was unsupported by material evidence.” It was the Teacher’s burden to prove that the Board acted illegally, arbitrarily of capriciously. Warren v. Polk County Bd. of Educ., 613 S.W.2d 222, 225 (Tenn.1981). Since we have rejected those arguments, and it should be fairly obvious from our discussion that we concur in the Board’s findings, we likewise reject the argument that its findings and actions were arbitrary and capricious.

The final argument advanced by the Teacher is that the Board took into consideration the Teacher’s atheism in violation of his right to freedom of religion and that by firing him for refusing to discontinue his “non-sexual” association with the Student, the Board violated his freedom to associate outside school hours. We have rejected the notion that this was not proven to be a sexual relationship. We think it beyond the realm of reasonable argument that a school can instruct a teacher to discontinue a sexual relationship with a minor student. Moreover, the Teacher offers no authority for the proposition that a school may not interfere with non-sexual association between a student and a teacher based on concerns of parents, even if the concerns are exaggerated. Accordingly, we hold that the Teacher’s rights of association were not violated.

The claim of religious discrimination is based on testimony concerning a pair of earrings alleged by the Director in his initial memorandum to be “gifts” from the Teacher to the Student that were “contrary to the parents’ teaching and upbringing of their child.” During the hearing, the Director testified that the parents viewed the earrings as “atheist earrings.” Also, the Student’s mother testified that her daughter balked at the idea of a family prayer saying, “I’m not giving thanks for a F-ing thing.... I’m atheist.” Some limited mention of this “gift,” which the Teacher claimed the Student paid for out of her earnings, was appropriate to allow the Board to consider whether it was in fact paid for by the Student or another falsehood offered by the Teacher to cover up his affections for the Student. Also, our perception of the import of the testimony is, not surprisingly, much different from the perception argued for by the Teacher. We believe it was intended and relevant to show the Teacher’s disregard, to the point of disdain, for the wishes of the parents. While the Teacher has some rights even in the school environment to his own freedom of religion, that right does not include the freedom to impose his religious beliefs on students just to spite parents. Wiley v. Franklin, 468 F.Supp. 138, 150 (E.D.Tenn.1979)(teachers must refrain from imposing their beliefs on students— parents have standing to challenge such actions). That would be unprofessional, which was the point of the hearing. We hold that the brief mention of “atheist earrings” and the Student’s newly found atheist beliefs during the hearing did not violate the Teacher’s freedom of religion. The same is true of the questions posed to the Teacher during the investigation. We hasten to add that the Teacher has now received two levels of judicial review, neither of which considered his religious beliefs, or lack thereof, in upholding his termination. See Cooper, 803 S.W.2d at 203 (any impropriety cured by de novo judicial review).

V.

The judgment of the trial court is affirmed. Costs on appeal are taxed to the appellant, Michael Crosby. The case is remanded, pursuant to applicable law, for collection of costs assessed below.

      . The Teacher argues that he should have been given advance notice of this student’s testimony, but, the student testified that he told no-one about the incident until two days before his testimony to the Board. He provided the information to counsel for the defendants at that time. The student's testimony was within the scope of the charges.

      . We are not saying the concerns of this Student’s parents were exaggerated. They were not.


source: Caselaw Access Project

author: Justice MEDINA

license: Public Domain

text:
    In re COLUMBIA VALLEY HEALTHCARE SYSTEM, L.P. d/b/a Valley Regional Medical Center, Relator.
    No. 08-0995.
    Supreme Court of Texas.
    Argued Feb. 18, 2010.
    Decided Aug. 27, 2010.

      Mike A. Hatchell, Charles R. Watson Jr., Locke Lord Bissell & Liddell LLP, Austin, TX, Thomas F. Nye, Robert William Clore, Gault Nye & Quintana, LLP, Corpus Christi, TX, William Gault, Vidaur-ri Lyde Gault & Quintana, Brownsville, TX, for Relator.
    Juan A. Magallanes, Magallanes & Hi-nojosa, P.C., Brownsville, TX, Carlos Esco-bar, Magallanes and Hinojosa, P.C., Mission, TX, Gilberto Hinojosa, Magallanes & Hinojosa, P.C., Brownsville, TX, Steve A. Kamel, Steve A. Kamel, P.C., Allen Jack Washburn, Murphrey & Washburn, Houston, TX, for Real Party in Interest.
    Ronald G. Hole, Hole & Alvarez, L.L.P., McAllen, TX, for Bangalore N. Lakshmi-kanth, M.D.

      W. Richard Wagner, Patterson Wagner & Rocheleau LLP, San Antonio, TX, for Carmen Maria De La Cruz Rocco, M.D.
    Steven M. Gonzalez, Marion R. Lawler III, Gonzalez Palacios LLP, McAllen, TX, for Frances M. Sweeney, M.D.
    Jeffrey D. Roerig, Roerig Oliveira & Fisher, LLP, Brownsville, TX, for Settled Schumacher Defendants.
    Reagan W. Simpson, King & Spalding LLP, Austin, TX, for amicus curiae, Trans-Global Solutions, Inc.
    Amy J. Schumacher, Strasburger & Price LLP, Austin, TX, for amicus curiae, Guaranty Insurance Services, Inc.
   Justice MEDINA

delivered the opinion of the Court.

In this original mandamus proceeding, we must determine whether a law firm should be disqualified from the underlying suit on the basis of a legal assistant’s work on the matter after previously having worked on the same matter while employed by opposing counsel. We have previously held that a firm can usually avoid disqualification when hiring an assistant who previously worked on a matter for opposing counsel if the firm (1) instructs the assistant not to work on the matter, and (2) takes other reasonable steps to shield the assistant from working in connection with the matter. In re Am. Home Prods. Corp., 985 S.W.2d 68, 75 (Tex.1998). We have not, however, set forth the types of “other reasonable steps” that are required, nor have we addressed whether disqualification is required when an assistant actually works on the matter for the second firm.

Because the legal assistant’s employer did not take effective reasonable steps to shield the assistant from working on the case, and the assistant actually worked on the case at her employer’s directive, we hold that disqualification is required and direct the trial court to grant the defendant’s motion to disqualify and recuse plaintiffs’ counsel.

I

In the underlying case, the plaintiffs, Yvonne and Alberto Leal (“the Leals”), brought a medical malpractice suit against Columbia Valley Healthcare System, L.P., doing business under the name Valley Regional Medical Center (“Valley Regional”). Valley Regional filed a motion to disqualify the Leal’s counsel, Magallanes & Hinojosa, P.C., because of its employment of legal assistant Margarita Rodriguez.

Rodriguez had previously worked on the Leal case while employed by Valley Regional’s counsel, William Gault, at Brin & Brin, P.C., assisting Gault from the inception of the suit. While employed by Brin & Brin, Rodriguez was a custodian of records and was responsible for filing many privileged documents concerning the suit, including investigative material, discussions with consulting experts, defense strategy, settlement negotiations, strategy for adding other parties to the suit, and attorney notes. Rodriguez also prepared correspondence to Valley Regional and its insurer. Before leaving Brin & Brin, Rodriguez signed a confidentiality agreement obligating Rodriguez not to work on any matter that she had previously worked on for Brin & Brin.

Approximately eleven months after leaving Brin & Brin, Rodriguez was hired by Magallanes & Hinojosa, a three-attorney firm, as a legal assistant for attorney J.A. Magallanes. Magallanes hired Rodriguez with knowledge that she had worked on the Leal case for Brin & Brin. At the time Rodriguez was hired, Magallanes orally instructed her not to work on any case with which she had prior involvement, specifically including the cases she had worked on while at Brin & Brin. The firm did not have any written screening policies in effect at the time of Rodriguez’s hiring. The firm’s other legal assistant, Luz Castro, was assigned to handle the Leal file. Magallanes later suffered a brain aneurysm, requiring hospitalization. Magal-lanes & Hinojosa associated with another firm to take over as lead attorneys, while Magallanes’ role in the matter was significantly reduced. However, Magallanes testified that he had continuing participation in the case after his hospitalization, such as attending a settlement hearing and that he anticipated involvement during trial.

Despite the oral instructions from Ma-gallanes, Rodriguez had contact with the Leal file on a few occasions while working at Magallanes & Hinojosa. According to Rodriguez, her contact consisted of the following: (1) filing correspondence related to the Leal case; (2) rescheduling a docket control conference; (3) preparing an order and sending correspondence to counsel concerning a docket control conference; (4) calling Gault’s legal assistant regarding the docket control conference; (5) calendaring dates regarding the case on Magal-lanes’ calendar; and (6) making a copy of a birth certificate and social security card in the case at Magallanes’ directive on one occasion. When Magallanes learned that Rodriguez had scheduled the docket control conference, he again orally instructed her not to work on the case, and held a meeting where he informed both Rodriguez and Castro that they would be dismissed if this happened again.

After this admonition, Rodriguez had continued contact with the file, albeit marginally, filing correspondence for Magal-lanes and handling Magallanes’ calendar. Magallanes also directed Rodriguez to make a copy of a birth certificate and social security card in the Leal case in his presence on one occasion.

When Gault learned that opposing counsel employed Rodriguez, he filed a motion on Valley Regional’s behalf to disqualify and recuse Magallanes & Hinojosa as counsel for the Leals. The trial court held an evidentiary hearing at which both Ma-gallanes and Rodriguez testified. After the hearing, the trial court denied Valley Regional’s motion to recuse and disqualify Magallanes & Hinojosa, while ordering Rodriguez not to be involved in any of the cases on which she worked while at Brin & Brin. Valley Regional sought mandamus relief in the court of appeals, complaining that the trial court abused its discretion in denying the motion. The court of appeals denied the petition, concluding that Magal-lanes & Hinojosa “took sufficient precautions to guard against any disclosure of confidences by [Rodriguez].... ” 321 S.W.3d 8 (TexApp.-Corpus Christi-Edin-burg 2008).

Valley Regional now petitions this Court for mandamus relief, urging that the trial court abused its discretion in denying the motion and that it has no adequate remedy on appeal. Valley Regional argues that Magallanes & Hinojosa has failed to overcome the rebuttable presumption that confidences were shared, insisting that the informal screening done at the firm was ineffective to ensure Rodriguez did not work on the matter. Valley Regional also argues that Rodriguez’s actual work on the case at Magallanes & Hinojosa should make the presumption of shared confidences conclusive.

Magallanes & Hinojosa counters that (1) its screening measures were sufficient, and (2) the confidentiality agreement Rodriguez signed before leaving Brin & Brin adds an additional layer of protection against the sharing of confidential information. Magallanes & Hinojosa further suggests that Magallanes’ limited participation in the Leal matter, and Rodriguez’s minimal work on the case at Magallanes & Hinojosa, renders Rodriguez’s actual contact with the Leal file de minimis.

II

An attorney who has previously represented a client may not represent another person in a matter adverse to the former client if the matters are the same or substantially related. Phoenix Founders, Inc. v. Marshall, 887 S.W.2d 831, 833 (Tex.1994) (citing NCNB Texas Nat’l Bank v. Coker, 765 S.W.2d 398, 399-400 (Tex.1989)); Tex. Disciplinary R. Prof’l Conduct 1.09(a), reprinted in Tex. Gov’t Code, tit. 2, subtit. G, app. A, (State Bar R. art. X, § 9). If the lawyer works on a matter, there is an irrebuttable presumption that the lawyer obtained confidential information during representation. Phoenix Founders, 887 S.W.2d at 833 (citing Coker, 765 S.W.2d at 400). When the lawyer moves to another firm and the second firm is representing an opposing party in ongoing litigation, a second irrebuttable presumption arises; it is presumed that the lawyer will share the confidences with members of the second firm, requiring imputed disqualification of the firm. Phoenix Founders, 887 S.W.2d at 834 (citing Petroleum Wholesale, Inc. v. Marshall, 751 S.W.2d 295, 299 (Tex.App.-Dallas 1988, orig. proceeding)); Tex. Disciplinary R. Prof’l Conduct 1.09(b).

A nonlawyer employee who worked on a matter at a prior firm is also subject to an irrebuttable presumption “that confidences and secrets were imparted” to the employee at the firm. Am. Home, 985 S.W.2d at 74; Phoenix Founders, 887 S.W.2d at 834. The reason this presumption is conclusive is the need “to prevent the moving party from being forced to reveal the very confidences sought to be protected.” Am. Home, 985 S.W.2d at 74 (quoting Phoenix Founders, 887 S.W.2d at 834). However, unlike with attorneys, a nonlawyer is not generally subject to an irrebuttable presumption of having shared confidential information with members of the new firm. Phoenix Founders, 887 S.W.2d at 834. Instead, this second presumption can be overcome, but only by a showing that: (1) the assistant was instructed not to perform work on any matter on which she worked during her prior employment, or regarding which the assistant has information related to her former employer’s representation, and (2) the firm took “other reasonable steps to ensure that the [assistant] does not work in connection with matters on which the [assistant] worked during the prior employment, absent client consent.” Am. Home, 985 S.W.2d at 75 (quoting Phoenix Founders, 887 S.W.2d at 835). Thus, the hiring firm may employ effective screening measures to shield the employee from the matter in order to avoid disqualification. See Grant v. Thirteenth Court of Appeals, 888 S.W.2d 466, 468 (Tex.1994) (orig. proceeding); Phoenix Founders, 887 S.W.2d at 833.

To determine whether the screening used by a firm is effective, we have said that the following factors may be considered: (1) the substantiality of the relationship between the former and current matters; (2) the time elapsing between the matters; (B) the size of the firm; (4) the number of individuals presumed to have confidential information; (5) the nature of their involvement in the former matter; and (6) the timing and features of any measures taken to reduce the danger of disclosure. Phoenix Founders, 887 S.W.2d at 836. Even if the new firm uses a screening process, however, absent consent from the former employer’s client:

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, or (2) when screening would be ineffective or the nonlawyer necessarily would be required to work on the other side of a matter that is the same as or substantially related to a matter on which the nonlawyer has previously worked. See ABA Op. 1526 at 3. Ordinarily, however, disqualification is not required as long as “the practical effect of formal screening has been achieved.”

Id. at 835 (quoting In re Complex Asbestos Litig., 232 Cal.App.3d 572, 283 Cal.Rptr. 732, 746-47 (1991)).

Here, there is no dispute that Magal-lanes & Hinojosa instructed Rodriguez not to perform work on any matter on which she worked during her former employment, including the Leal case. Thus, Ma-gallanes & Hinojosa satisfied the first prong in our disqualification analysis since it gave this instruction. Instead, the parties dispute whether Magallanes & Hinojo-sa took “other reasonable steps” to ensure Rodriguez did not work on the Leal case. Because we have not previously determined the types of “reasonable steps” necessary to avoid disqualification, we today take the opportunity to clarify the measures a law firm or lawyer must take to effectively screen a nonlawyer employee from a matter.

Ill

Disqualification of a party’s counsel is a severe remedy, see Coker, 765 S.W.2d at 400, and there are many reasons against granting such a motion liberally, especially when a nonlawyer is the reason behind the motion to disqualify. We have stated that, as compared with lawyers, there is greater concern that the mobility of nonlawyers could be “unduly restricted.” Am. Home, 985 S.W.2d at 75; see also Phoenix Founders, 887 S.W.2d at 835. Other factors also arise, including the ability of a client to have the lawyer of its choice, concerns about the prejudice and economic harm that could result to a client when the disqualification of its counsel is ordered, and concerns about motions to disqualify being abused as a dilatory tactic. See Leibowitz v. The Eighth Jud. Dist. Ct. of the State of Nev., 119 Nev. 523, 78 P.3d 515, 521 (2003); see also Erik Wittman, A Discussion of Nonconsensual Screens as the ABA Votes to Amend Model Rule 1.10, 22 Geo. J. Legal Ethics 1211, 1218-19 (2009). Further, a nonlawyer employee may not have the same financial interest in the results of a case, nor the same understanding of confidential information as a lawyer. See Restatement (Third) of the Law GoveRning Lawyers § 123 cmt. f (2000) (“nonlawyers ordinarily understand less about the legal significance of information they learn in a law firm than lawyers do, and they are often not in a position to articulate to a new employer the nature of the information gained in the previous employment. If strict imputation were applied, employers could protect themselves against unanticipated disqualification only by refusing to hire experienced people.”). It is because of these concerns that a hiring firm can present evidence to rebut a presumption that the nonlawyer has shared confidences with members of the firm.

But where a serious conflict of interest is present because of a nonlawyer’s work on a matter that the nonlawyer previously worked on for opposing counsel, important public policies may balance in favor of disqualification. It is axiomatic that an attorney may not switch sides in the same matter, not only to protect the confidential information of a client but also to protect the integrity of the trial process and judicial system as a whole. Similar concerns about client confidentiality and the integrity of the legal system may arise where a nonlawyer employee is concerned. We have stated that “[t]he test for disqualification is met by demonstrating a genuine threat of disclosure, not an actual materialized disclosure.” Grant, 888 S.W.2d at 467; see also Am. Home, 985 S.W.2d at 74. While a nonlawyer employee may not have the same knowledge of confidential information as a lawyer, the employee can certainly understand enough of the confidential materials to present a threat of disclosure at the hiring firm. See Jonathan Putnam, Catering to Our Clients: How In re Cater Exposes the Flaws in Model Rule 5.3 — and How They Can Be Solved, 19 Geo. J. Legal Ethics 925, 925 (2006) (noting that “the drive to offer quality legal representation at competitive costs to clients has led to an explosive growth in the use of nonlawyer employees to perform functions that have traditionally been the responsibility of attorneys”). Moreover, it is certainly understandable that a client would have concerns upon learning that a nonlawyer employee is now working for opposing counsel, if the employee previously had access to confidential information in the client’s case.

With these principles in mind, we conclude that a simple informal admonition to a nonlawyer employee not to work on a matter on which the employee previously worked for opposing counsel, even if repeated twice and with threat of termination, does not satisfy the “other reasonable measures” a firm must take to properly shield an employee from the litigation. Instead the other reasonable measures must include, at a minimum, formal, institutionalized screening measures that render the possibility of the nonlawyer having contact with the file less likely.

This measure is necessary to ensure that the employee is fully and effectively screened from the matter and does not have contact with the forbidden file. If a firm has formal, institutional screening measures in place, all employees of the firm will have greater understanding of the firm’s expectations for guarding against conflicts of interest. We have previously suggested the necessity of formal, institutional measures, see Grant, 888 S.W.2d at 467-68, but we hold today that a firm must implement such measures to rebut the presumption of shared confidences. When a government attorney moves to a private firm, our rules generally allow the screening of the attorney from cases that might involve a conflict of interest with the attorney’s former employment. See Tex. Disciplinary R. Prof’l Conduct 1.10. The comments to this rule specify that the screening provisions “contemplate that the screened lawyer has not furnished and will not furnish other lawyers with information relating to the matter, will not have access to the files pertaining to the matter, and will not participate in any way as a lawyer or adviser in the matter.” Id. cmt. 3. We envision that each firm will implement a formal screening process that effectively accomplishes these goals when hiring a nonlawyer as well. If a firm hires a non-lawyer who has previously worked for opposing counsel on a matter and then fails to have formal, institutional screening measures in place to shield the nonlawyer from the matter, concerns about the threat of disclosure are unduly high, requiring disqualification. See Am. Home, 985 S.W.2d at 74-75; Grant, 888 S.W.2d at 467-68.

Despite the screening measures used, if the employee actually works on the case at her employer’s directive, as happened here, and the employer reasonably should know about the conflict of interest, then the presumption of shared confidences must become conclusive. The Disciplinary Rules require a lawyer having direct supervision over a nonlawyer to make reasonable efforts to ensure that the assistant’s conduct is compatible with the professional obligations of a lawyer. Phoenix Founders, 887 S.W.2d at 834; Tex. Disciplinary R. Prof’l Conduct 5.03(a). As such, a supervising lawyer may not order, encourage, or permit a nonlawyer to engage in any conduct that, if engaged in by the lawyer, would subject the lawyer to discipline. Phoenix Founders, 887 S.W.2d at 834; R. 5.03(b). Thus, if the Disciplinary Rules prohibit a lawyer from revealing confidential information, “they also prohibit a supervising lawyer from ordering, encouraging, or permitting a nonlawyer to reveal such information.” Phoenix Founders, 887 S.W.2d at 834; R. 1.05(b)(1). We went on to note in Phoenix Founders that the Rules do not require disqualification of the new firm, “provided that the supervising lawyer at that firm complies with the Rules so as to ensure that the nonlawyer’s conduct is compatible with the professional obligations of a lawyer.” Phoenix Founders, 887 S.W.2d at 834 (citing Tex. Comm. on Prof'l Ethics, Op. 472, 55 Tex. B.J. 520, 521 (1992)). But we suggested that disqualification is required if the firm and nonlawyer fail to ‘‘strictly adhere ” to an effective screening process. Phoenix Founders, 887 S.W.2d at 834 (citing ABA Comm, on Ethics and Profl Responsibility, Informal Op. 1526 (1988)) (emphasis added).

A law firm that directs a nonlaw-yer employee to work on a forbidden case and that reasonably should know about the conflict of interest is not strictly adhering to a screening process. When this happens, the threat that confidences will be shared becomes unduly high, and disqualification is required. See Grant, 888 S.W.2d at 467-68. This holding is in line with our previous opinions. See Grant, 888 S.W.2d at 468 (holding that disclosure was required where the current employer permitted the paralegal to work on the same litigation she had worked for at her prior firm, even after becoming aware that she had previously worked on the case); Am. Home, 985 S.W.2d at 76 (holding that disqualification was required where lawyer failed to instruct an assistant not to work on a case, nor strictly adhered to an effective screening process).

Similarly, the Restatement of the Law Governing Lawyers notes that “strict imputation” does not apply to nonlawyers who are employed by opposing counsel’s firm, but that the lack of imputation is inapplicable in a situation in which a non-lawyer employee is assigned at the new firm to work directly on the same matter on which the employee had worked at a prior firm. Restatement (Third) of the Law Governing Lawyers § 123 cmt. f (2000). While in the instant case Rodriguez was not actually “assigned” to work on the Leal matter, she was, on at least one occasion, directly given a task to perform on the matter. We fail to see a meaningful distinction between “assigning” a nonlawyer to a case versus having the nonlawyer perform work on the case without a formal assignment. When a nonlaw-yer employee is given any work to perform on a forbidden matter, and the employer reasonably should know about the conflict of interest, disqualification is required.

In summary, when considering a motion to disqualify on the basis of a firm’s employment of a nonlegal employee who previously worked on the same or a substantially related matter for opposing counsel, the trial court must consider whether the hiring firm has rebutted the presumption of shared confidences. To rebut this presumption, the hiring firm must demonstrate that (1) the employee was instructed not to work on any matter which she worked on during her prior employment, or regarding which the employee has information related to her former employer’s representation, and (2) the firm took other reasonable steps to ensure that the employee does no work in connection with matters on which the employee worked during the prior employment, absent client consent. These other reasonable steps must include, at a minimum, formal, institutional measures to screen the employee from the case.

Despite the screening measures used, the presumption of shared confidences becomes conclusive if: (1) information relating to the representation of an adverse client has in fact been disclosed, (2) screening would be ineffective or the nonlawyer necessarily would be required to work on the other side of a matter that is the same as or substantially related to a matter on which the nonlawyer has previously worked, or (3) the nonlawyer has actually performed work, including clerical work, on the matter at the lawyer’s directive if the lawyer reasonably should know about the conflict of interest.

We do not believe these requirements will prove unduly burdensome for lawyers and their employees, even in the case of a small firm or sole practitioner. In the case of a small law office with only one employee, it may be that the lawyer will be required to perform some clerical functions on a matter from which the employee is screened. Yet this is a small burden when balanced against the threat of confidences being revealed and the protection of a client’s confidential information. In a small firm like Magallanes & Hinojosa that has more than one assistant, it will be a fairly simple matter to transfer all work on a forbidden case to the other employee and shield the screened employee from the case.

We finally note that these requirements apply only to nonlawyer employees who have access to material information relating to the representation of clients, as well as agents who technically may be independent contractors, such as investigators. See ABA Op. 1526.

IV

We agree with Valley Regional that Magallanes & Hinojosa failed to rebut the presumption of shared confidences since: (1) they did not effectively screen Rodriguez from the Leal matter; and (2) even if they had done so, Rodriguez actually worked on the Leal matter at Magal-lanes’ directive when Magallanes knew of Rodriguez’s previous work on the Leal matter. Magallanes instructed Rodriguez not to work on the Leal file, but did not take other institutional, formal measures to ensure Rodriguez did not work on the matter. For example, Magallanes & Hino-josa did not remove the file from Rodriguez’s access or provide Rodriguez with any written policy about conflicts of interest, relying instead on oral instructions that proved ineffective. Indeed, Rodriguez apparently had ready access to the file and performed work on it even after the admonition.

Finally, Magallanes asked Rodriguez to make copies for the Leal case on one occasion. Making copies is perhaps a simple, clerical matter, yet the message sent not only to Rodriguez but other employees at the firm was that Magallanes & Hinojo-sa was not serious about guarding against conflicts of interest.

V

Magallanes & Hinojosa also contends that the confidentiality agreement Rodriguez signed on leaving Brin & Brin satisfies the additional reasonable measures needed to ensure confidentiality. We disagree. As we made clear in Phoenix Founders, it is incumbent on the hiring attorney to “take other reasonable steps to ensure that the [employee] does not work in connection with matters on which the [employee] worked during the prior employment, absent client consent.” 887 S.W.2d at 835. Because the confidentiality agreement was not a step taken by the hiring attorney, it is not relevant to the disqualification analysis. See id. (“client confidences may be adequately safeguarded if a firm hiring a paralegal from another firm takes appropriate steps in compliance with the Disciplinary Rules”). We refuse to shift the screening responsibility to the former client or its counsel. Instead, it is the responsibility of the hiring firm to take effective, formal, institutional measures to shield the employee from the litigation.

Because the trial court abused its discretion in refusing to disqualify Magallanes & Hinojosa, we conditionally grant mandamus relief and direct the trial court to grant Valley Regional’s motion to disqualify and recuse Magallanes & Hinojosa from the Leal matter. We are confident the court will comply, and the writ will issue only if it does not.

      . Attorneys from Brin & Brin, P.C. subsequently formed a new law firm called Vidaur-ri, Lyde, Gault & Quintana, L.L.P., where Gault now practices and represents Valley Regional in the underlying suit.

      . Mandamus is available where a motion to disqualify is inappropriately denied as there is no adequate remedy on appeal. See NCNB Texas Nat’l Bank v. Coker, 765 S.W.2d 398, 400 (Tex.1989).