Chapter 4-1 Legal Malpractice

• Jurisdiction: United States

4-1 Legal Malpractice

4-1:1 Overview

A cause of action for legal malpractice generally is in the nature of a tort.¹ Claims relating to the quality of a lawyer's representation of his client are professional negligence claims.² When the claim arises due to the lawyer's obtaining an improper benefit from representing a client, however, the client may also sue for breach of fiduciary duty.³ A violation of the Texas Disciplinary Rules of Professional Conduct alone does not give rise to a private cause of action.⁴ The client may also have a claim from breach of contract depending on the nature of the agreement (written versus oral); the enforceability may be affected by application of the Statute of Frauds.

MUST READ CASES

Cosgrove v. Grimes, 744 S.W.2d 662 (Tex. 1989) (Supreme Court rejected concept of judgmental immunity, which protects lawyers who exercise professional judgment in subjective good faith); Willis v. Maverick, 760 S.W.2d 642 (Tex. 1988)

Cook v. Brundidge, Fountain, Elliott & Churchill, 533 S.W.2d 751, 758 (Tex. 1976) (basic principles of agency apply to law firm's liability for its lawyers and staff in malpractice action)

4-1:2 Elements⁵

(1) Attorney owed plaintiff a duty:

• This duty is established by proving the existence of an attorney-client relationship.⁶
• A lawyer owes a duty to a non-client if the lawyer should have reasonably expected that the non-client would believe the lawyer represented him and the lawyer failed to advise of non-representation.⁷
• An excess carrier may bring a legal malpractice claim against the insured's lawyer based on an equitable subrogation claim.⁸
• A lawyer does not owe the beneficiaries of a decedent's estate a duty on which the beneficiaries could sue for legal malpractice.⁹ However, an estate's personal representative may bring a legal malpractice claim against the decedent's estate planning attorney on behalf of the estate.¹⁰

(2) Attorney breached that duty:

• A lawyer's standard of care is that which would be exercised by a reasonably prudent lawyer.¹¹
• Board certified lawyers may be expected to possess a higher degree of skill and learning than a general practitioner.¹²

(3) The breach proximately caused plaintiff's injuries:

• When couched a s a negligence claim, the plaintiff must prove that the legal malpractice was the proximate cause of the injury.¹³ The plaintiff must show that the malpractice was a substantial factor in bringing about the injury and without which no harm would have occurred.¹⁴ The plaintiff must also prove that the lawyer should have anticipated the dangers to his client by the negligent act.¹⁵ Mere differences in decision making are judgment may not be sufficient. If the attorney makes a decision that a reasonably prudent attorney could make in the same or similar circumstance, then it is not an act of negligence, even if the result is undesirable.¹⁶
• When a plaintiff's malpractice claim alleges that the attorney's negligence caused an adverse result in prior litigation, the plaintiff must prove that it would have prevailed in the underlying case but for the attorney's negligence.¹⁷ the plaintiff must prove that the client would have obtained a more favorable result in the underlying litigation had the attorney conformed to the proper standard of care.¹⁸ This unique requirement of legal malpractice is known as the "suit-within-a-suit" requirement.¹⁹
• Traditionally, the suit within a suit necessitates recreating the underlying case²⁰,²¹

(4) Damages occurred

• The plaintiff may seek to recover foreseeable damages proximately caused by the malpractice. When the alleged malpractice is based on the attorney's wrongful conduct in the prior litigation, the foreseeable damages are usually the amount the client would have collected, or would have avoided paying, if the litigation had been competently handled.²²

4-1:3 Damages and Remedies

4-1:3.1 Actual Damages

A malpractice plaintiff may recover actual damages.²³

²⁴ The general measure of damages in a legal-malpractice case is the difference between the amount plaintiff probably would have recovered in the absence of the malpractice, and the amount recovered.²⁵ The plaintiff may recover attorneys' fees from the underlying suit as damages if the malpractice proximately caused the additional fees.²⁶ For example, the plaintiff may recover attorneys' fees for separate counsel retained for post-trial proceedings caused by the defendant attorney's malpractice.²⁷

4-1:3.2 Interest

Prejudgment interest is recoverable.²⁸

4-1:3.3 Court Costs

Under the Texas Rules of Civil Procedure, the successful party in a suit is entitled to recover all the taxable costs incurred, without any stated requirement of pleading for costs.²⁹ In a legal malpractice claim, a "successful party," one who obtains a judgment of a competent court of jurisdiction vindicating a civil claim of right, may recover court costs.³⁰ See Chapter 11, Section 11-13:2. Typically, however, the party should plead for all relief, both at law and in equity, which the party may be justly entitled.³¹

4-1:3.4 Mental Anguish

In 1989, the Texas Supreme Court allowed a mental anguish award in a legal malpractice case without discussion of the issue.³² However, 10 years later in 1999, the Supreme Court held that mental anguish damages caused by economic losses due to an attorney's negligence are not recoverable.³³ The Court left open the question of whether mental anguish damages are recoverable in noneconomic loss cases or when heightened culpability is alleged.³⁴

Mental anguish damages may be recoverable for intentional or malicious conduct.³⁵

4-1:3.5 Exemplary Damages

Exemplary damages are available if the plaintiff proves harm resulted from fraud, malice, or gross negligence.³⁶

Unless alleged malpractice constitutes felony, exemplary damages are capped at two times the economic damages plus not more than $750,000 of any noneconomic damages, or $200,000, whichever is greater.³⁷

4-1:4 Defenses

4-1:4.1 Statute of Limitations

4-1:4.1a Two-Year Statute of Limitations

A two-year limitations period applies to legal malpractice claims regardless of whether plaintiff pleads in tort, contract, fraud or some other theory.³⁸ A claim regarding the quality of the...