Chapter 9-1 Action Against Opposing Attorney

• Jurisdiction: United States

9-1 Action Against Opposing Attorney

9-1:1 Overview

Normally, a plaintiff must be in privity with an attorney to bring suit based upon the attorney's legal services.¹ Attorneys owe their clients a fiduciary duty² that likely is stricter than those duties other fiduciaries owe.³ Attorneys also owe their clients a duty of care not to engage in professional negligence.⁴ A client may maintain a cause of action for legal malpractice if the attorney commits a breach of that duty of care.⁵ In some very limited circumstances, a third party may maintain an action against another's attorney if that attorney negligently furnished false information to a known third party for a known purpose and the third party justifiably relied upon that information.⁶

9-1:1.1 Related Causes of Action

Attorney Breach of Fiduciary Duty, Legal Malpractice

MUST READ CASES

McCamish, Martin, Brown & Loeffler v. F.E. Appling Interests, 991 S.W.2d 787 (Tex. 1999) Mitchell v. Chapman, 10 S.W.3d 810 (Tex. App.—Dallas 2000, pet. denied)

9-1:2 Expressly Rejected in Texas

As a general rule, Texas courts expressly limit attorney liability to those persons in privity with the attorney.⁷ The Supreme Court of Texas has recognized one exception to the general rule, authorizing a third party to maintain an action against another's attorney if that attorney negligently furnished false information to a known third party for a known purpose and the third party justifiably relied upon that information.⁸ However, this avenue for a third party not in privity with the defendant-attorney is not open to opposing parties because an opposing party cannot justifiably rely upon an opposing counsel's statements.⁹

* The authors thank Max Moran for his assistance in the updating of this chapter.

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Notes:

^[1] McCamish, Martin, Brown & Loeffler v. F.E. Appling Interests, 991 S.W.2d 787, 792 (Tex. 1999).

^[2] Daniels v. Empty Eye, Inc., 368 S.W.3d 743, 749 (Tex. App.—Houston [14th Dist.] 2012, pet. denied); Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 199 (Tex. 2002).

^[3] See Trousdale v. Henry, 261 S.W.3d 221, 229 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) (The duties which an attorney owes her client require "absolute perfect candor, openness and honesty, and the absence of any concealment or deception.").

^[4] Duerr v. Brown, 262 S.W.3d 63, 76 (Tex. App.—Houston [14th Dist.] 2008, no pet.).

^[5] Duerr v. Brown, 262 S.W.3d 63, 76 (Tex. App.—Houston [14th Dist.] 2008, no pet.).

^[6] McCamish, Martin,...