Sued? Getting. Recent Developments in Attorney Litigation. By Tim T. Griesenbeck, Jr. & Stephanie Martin

Transcription

1 Getting Sued? Recent Developments in Attorney Litigation By Tim T. Griesenbeck, Jr. & Stephanie Martin Attorneys continue to be sued by both clients and third-party non-clients. This article discusses recent developments in attorney litigation. The article first discusses a non-client s burden to prove justifiable reliance for a negligent misrepresentation claim against an attorney. The article then examines a split in the appellate courts about whether a conflict of interest claim constitutes professional negligence or a breach of fiduciary duty. Suits Against Attorneys by Non-Clients Texas law generally prohibits a third-party non-client from suing an attorney, because a non-client is not in contractual privity with the attorney and thus the attorney does not owe the non-client a duty. 1 In addition, the litigation privilege generally protects an attorney from claims by opposing parties. 2 Despite this protection, the courts permit lawsuits by non-clients against attorneys for negligent misrepresentation, fraud, conspiracy to commit fraud, intentional torts, and tortious interference with inheritance rights, and an estate s personal representative s claim of estate-planning malpractice. 3 Negligent Misrepresentation San Antonio Lawyer 10 March-April 2009 The courts recognition of a non-client s claim against an attorney for negligent misrepresentation can be traced to the Supreme Court of Texas decision in McCamish, Martin, Brown & Loeffler v. F.E. Appling Interests, 991 S.W.2d 787 (Tex. 1991). In McCamish, the court determined that a law firm can be held liable to a non-client under section 552 of the Restatement (Second) of Torts. 4 The court reasoned that a law firm s liability to a non-client is based on an independent duty to the non-client where the attorney is aware of the non-client s reliance on the misrepresentation and the attorney intends that the non-client rely on the misrepresentation, e.g., a transfer of information to a known party for a known purpose. 5 The court explained that for an attorney to be liable for negligent misrepresentation, there must be misrepresentation of material facts by the attorney and justifiable reliance by the non-client. 6 McCamish established a narrow exception to the general rule that a non-client may not sue an attorney for malpractice that is, a non-client may sue an attorney for negligent misrepresentation under 552 of the Restatement (Second) of Torts. 7 Recently, the Fifth Court of Appeals examined the importance of the justifiable reliance element in Kastner v. Jenkins & Gilchrist, P.C., 231 S.W.3d 571 (Tex. App. Dallas 2007, no pet.). In Kastner, the Kastners a non-client limited partner asserted claims against the limited partnership s attorney and his law firm, as well as against the limited partnership s general partner, after the limited partnership s investment in a commercial real estate venture failed. The defendant attorney Mr. Dunlap with Jenkins & Gilchrist was hired by a real estate broker Mr. Box to provide legal services in connection with Box s company Malebox to purchase an apartment complex by selling investment interests in the property. As part of his legal services, Dunlap formed a limited partnership to acquire the apartment complex and prepared a limited partnership agreement. Malebox assigned the agreement to purchase the apartment complex to the partnership, and Box then solicited participation in the venture through sales of limited partnership interests. The plaintiffs the Kastners subscribed to the partnership and became limited partners after their initial capital contribution of $120,000. Dunlap prepared the partnership agreement

2 in accordance with information provided by Box and his business associate, and mailed the partnership agreement to each of the limited partners. The letter included Exhibit A, which reflected the partnership percentages, capital contributions, and final percentages. After the closing, Dunlap sent a letter on firm letterhead to each of the limited partners, enclosing a full copy of the partnership agreement with Exhibit A attached. Subsequently, the partnership experienced financial difficulty and filed for bankruptcy. The Kastners lost their money and sued. Appealing the summary judgment on their negligent misrepresentation claim, the Kastners argued that Dunlap was liable for negligent misrepresentation under Mc- Camish. They contended Dunlap erroneously identified all partners contributions as cash contributions when they were not all made in cash, incorrectly quantified the general partners interest, and created a document reflecting the incorrect amount of capital raised by the partnership. They contended that although Dunlap represented he would adjust the partnership percentages at closing, he failed to do so. They characterized the law firm cover letter enclosing the partnership agreement as an attorney representation. The Fifth Court of Appeals disagreed. The court explained that negligent misrepresentation is distinct from malpractice. Unlike malpractice, negligent misrepresentation is not premised on a breach of duty a professional owed to his client or others in privity, but results from the professional s manifest awareness of the non-client s reliance on the misrepresentation and the professional s intention that the non-clients so rely. 8 The court stated that 552 imposes on an attorney only a limited duty to a nonclient. The duty arises only when it is justified, that is, when: (1) the attorney is aware of the non-client and intends for the non-client to rely on the representation; and (2) the non-client justifiably relies on the attorney s representation of a material fact. 9 The court emphasized that a non-client s reliance on attorney representations is not justified unless the attorney invites the reliance. 10 The Fifth Court of Appeals found no reliance in Kastner, explaining that Dunlap neither invited, nor was aware of, the Kastners reliance. The court observed that the cover letter forwarding the partnership agreement was the attorney s only communication with the Kastners. The court explained that the letter contained no legal opinions or evaluations the letter simply conveyed neutral information about the mechanics of anticipated revisions after the closing. 11 The Kastners argued that reliance was justified because of the large Dallas law firm letterhead, but the Fifth Court of Appeals held that such superficial indicia failed to justify reliance. The court stated that the mere transmission of a partnership agreement from an attorney to a non-client cannot reasonably be construed as a legal opinion of the agreement or propriety of the investment in the partnership. 12 Under Kastner, a court will hold an attorney liable for a negligent misrepresentation to a non-client in the rare case where an attorney provides an opinion letter or similar evaluation to the non-client with the intent that the non-client rely on the opinion. In other cases, the attorney may avoid or minimize the risk of liability to a non-client by stating limitations as to whom the representation is directed and who should rely on the opinion, or by adding a disclaimer about the scope and accuracy of the factual investigation or assumptions forming the basis of the representation or the representation itself. 13 Suits Against Attorneys by Clients Suits for professional negligence. A client making a legal malpractice claim for professional negligence, or the failure to exercise ordinary care, typically alleges the attorney gave bad or erroneous legal advice or opinions, improperly represented the client, delayed or failed to handle a matter entrusted to the lawyer s care, or failed to use ordinary care in preparing, managing, and prosecuting a case. 14 The statute of limitations for professional negligence claims against lawyers is two years. 15 Suits for breach of fiduciary duty. Breach-of-fiduciary-duty claims against lawyers involve the integrity and fidelity of an attorney. The courts focus on whether an attorney obtained an improper benefit from representing the client. 16 Improper benefit includes subordinating the client s interest to his own, retaining client funds, engaging in self-dealing, improper use of client confidences, failing to disclose conflicts of interest, or making misrepresentations to achieve those ends. 17 The statute of limitations on a claim for breach of fiduciary duty is four years. 18 Suits for fraud. Fraud claims against lawyers usually involve specific allegations of fraud surrounding the fees charged for lawyers services. 19 Section of the Texas Civil Practice and Remedies Code provides for a four-year statute of limitations for fraud claims. The courts have struggled with the fracturing of legal malpractice claims into multiple causes of action to avoid problems with limitations. Texas courts do not allow plaintiffs to convert, or fracture, what in reality are legal malpractice or professional negligence claims into claims for breach of fiduciary duty, fraud, breach of contract, or violation of the DTPA. 20 The courts apply the principle that the anti-fracturing rule prevents legal malpractice plaintiffs from adding other causes of action when the focus of the complaint is the quality of representation, i.e., whether the lawyer exercised that degree of care, skill, or diligence that attorneys of ordinary skill and knowledge commonly possess. But claims based on proven distinct allegations may be brought as separate causes of action. Affirmative misrepresentations of material fact, for example, will support a separate DTPA claim, while the presence of a contract may allow a contract claim. Specific fraud claims regarding attorneys fees may also be maintained. If the attorney engaged in conduct with the purpose of receiving improper benefits from the relationship, a breach of fiduciary duty claim may arise. 21 Conflict-of-Interest Claims Against Lawyers Much of the law applying to lawsuits by clients against their attorneys is wellsettled, but the courts characterization of conflict of interest claims is somewhat unsettled. Some courts have characterized conflict-of-interest claims as professional negligence claims and others courts have characterized them as breach of fiduciary duty claims. The courts characterization of conflict-of-interest claims is important because the statute of limitations is different for these claims. A professional negligence claim has a two-year statute of limitations; a breach of fiduciary-duty claim has a fouryear statute of limitations. The courts treatment of these claims has been inconsistent. In 1998, the Fourth Court of Appeals considered a conflict-of-interest case in Kahlig v. Boyd, 980 S.W.2d 685 (Tex. App. San Antonio 1998, pet. denied). In Kahlig, the plaintiff-client asserted fraud San Antonio Lawyer 11 March-April 2009

3 and DTPA claims against his lawyer. The lawyer had had an affair with the client s then-wife during a child custody dispute. The plaintiff argued that the affair created a conflict of interest, which the lawyer was required to disclose. The court explained that a claim based upon the failure to exercise that degree of care, skill, and diligence that a lawyer of ordinary skill and knowledge commonly possesses and exercises, despite its labeling, is a malpractice claim. 22 Because the client alleged that once the lawyer started the affair with his wife, the lawyer was not representing the client to the best of the lawyer s abilities, the court determined that two of the plaintiff s fraud and DTPA claims were disguised malpractice claims. Four years later, the Fourteenth Court of Appeals reached a somewhat different result in Deutsch v. Hoover, Bax & Slovacek, L.L.P., 97 S.W.3d 179 (Tex. App. Houston [14 th Dist.] 2002, no pet.). In Deutsch, the court of appeals considered whether the counter-plaintiff s breach of fiduciary duty allegations impermissibly fractured his negligence counterclaim. The court explained that allegations to the effect that the defendant law firm did not exercise the degree of care, skill, or diligence that attorneys of ordinary skill and knowledge commonly possess could be brought as negligence claims. 23 By asserting those claims as breach of fiduciary duty allegations, the counter-plaintiff impermissibly fractured his claim. The court determined, however, that allegations of failure to counsel and advise the client about conflicts which arose during the representation of the client, failure to withdraw once the conflict arose, and failure to advise the client to retain separate counsel in light of the conflict supported a claim for breach of fiduciary duty. 24 In 2006, the Seventh Court of Appeals in Archer v. Medical Protective Company, 197 S.W.3d 422 (Tex. App. Amarillo 2006, pet. denied) considered an allegation that a lawyer s representation of the client was adversely limited by the lawyer s own interest in keeping the business and favor of the insurer. The court determined the claims could be treated as a claim for breach of fiduciary duty rather than professional negligence because it concerns a matter of divided loyalties; e.g., the pursuit of attorney s own pecuniary interest over the interests of his client. 25 Recently, the Fifth Court of Appeals analyzed one of the more difficult aspects of fracturing in Murphy v. Gruber, 241 S.W.3d 689 (Tex. App. Dallas 2007, pet. denied). The plaintiffs father Murphy, his close friend Renick, and Howell were limited partners in a limited partnership operating Blockbuster franchises. Howell hired the defendant attorney and sued other defendants for selling the general partnership interests and assets back to Blockbuster Entertainment Corporation without appropriate compensation to the limited partners. The defendant lawyer (Gruber) represented Howell and obtained a $123,000,000 judgment. After Murphy died, his widow and children (Murphy/Brocks) sought advice and counsel from Renick, as their father s good friend, about suing Blockbuster like Howell did. Renick encouraged them to join him in a similar lawsuit. Murphy/Brocks hired the same lawyers (the defendants) who expressed great confidence in the value of the claims, that most issues had been decided, and that the next partnership group s lawsuit would 1 See Gillespie v. Scherr, 987 S.W.2d 129, 132 (Tex. App. Houston [14 th Dist.] 1998, pet. denied) (privity rule protects attorneys in class action lawsuit from legal malpractice claim by non-client potential/unnamed class members); Gamboa v. Shaw, 956 S.W.2d 662 (Tex. App. San Antonio 1997, no pet.) (court refused waiver of privity in malpractice claim brought against corporation s attorney by corporate shareholder); Dickey v. Jansen, 731 S.W.2d 581 (Tex. App. Houston [1 st Dist.] 1987, writ ref. n.r.e.)(intended beneficiaries of a trust are not in privity with testator s attorney; lack of privity precludes cause of action.); See also Belt v. Oppenheimer, 192 S.W.3d 780, 784 (Tex. 2006) (personal representative of estate, as opposed to estate s beneficiaries, may bring legal malpractice claim against attorney who represented decedent in planning the estate); Barcelo v. Elliot, 923 S.W.2d 575 (Tex. 1996) ( bright line privity rule denies a cause of action to estate beneficiaries not represented by attorney, but does not preclude a legal malpractice claim brought by representative of the estate; estate stands in the shoes of decedent thereby establishing privity with decedent s estate-planning attorney); Huie v. DeShazo, 922 S.W.2d 920 (Tex. 1996) (only trustee, not trust beneficiary, is client of trustee s attorney); O Donnell v. Smith, 234 S.W.3d 135, 146 (Tex. App. San Antonio 2007, pet. granted). 2 Bradt v. West, 892 S.W.2d 56, (Tex. App. Houston [1 st Dist.] 1994, writ denied) (litigation privilege or attorney immunity); See also Taco Bell Corp. v. Cracken, 939 F. Supp. 528, (N.D. Tex. 1996); Renfroe v. Jones & Assocs., 947 S.W.2d 285, 288 (Tex. App. Fort Worth 1997, writ denied). 3 Likover v. Sunflower Terrace II, Ltd., 696 S.W.2d 468 (Tex. App. Houston [1 st Dist.] 1985, no writ) (privity not a defense to fraud claim by third party non-client; See also Bourland v. State, 528 S.W.2d 350 (Tex. Civ. App. Austin 1975, writ ref. n.r.e.); (conspiracy); Kim v. Acker, 725 S.W.2d 750 (Tex. App. Houston [1 st Dist.] 1987, no writ). 4 McCamish, Martin, Brown & Loeffler v. F.E. Appling Interest, 991 S.W.2d 787, 791 (Tex. 1999) (finding that nothing in 552 warranted an exception for attorneys; theory had already been applied against accountants, surveyors, title insurers, physicians, real estate brokers, auditors). See also RESTATEMENT (SECOND) OF TORTS 552 (1977) ( One who, in the course of his business, profession or employment, or in any transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information ); First Nat l Bank of Durandt v. Trans Terra Corp., 142 F.3d 802 (5 th Cir. 1998) (Texas law subsequently extended to allow non-client to recover against attorney for negligent misrepresentation);wright v. Holloway, 173 S.W.3d 534 (Tex. App. Houston [14 th Dist.] 2004, pet. denied) (reaffirming privity was not a prerequisite for claim of negligent misrepresentation by non-client; issue for determining liability has shifted from one of privity to the two-part inquiry focusing on the attorney s awareness of a non-client and intent for reliance, a representation, and the non-client justifiable reliance on the attorney s representation of a material fact). 5 McCamish, 991 S.W.2d at Id. Reliance is not justifiable if the representation is made during litigation because the attorney is obliged to pursue his client s interest with undivided loyalty. Mitchell v. Chapman, 10 S.W.3d 810 (Tex. App. Dallas 2000, pet. denied) (attorney conduct while representing a client in a lawsuit could not create an actionable duty to the adverse party under 552); Lesikar v. Rappeport, 33 S.W.3d 282 (Tex. App. Texarkana 2000, pet. denied) (reliance not present in litigation context). 7 See McCamish, 991 S.W.2d at Kastner v. Jenkins & Gilchrist, P.C., 231 S.W.3d 571, 577 (Tex. App. Dallas 2007, no pet.). 9 Kastner, 231 S.W.3d at Id. at 578. See McCamish, 991 S.W.2d at 795; Belt, 192 S.W.3d at Kastner, 231 S.W.3d at Id. The court explained that characterizing the letter as an attorney representation would effectively require attorneys to adopt as their own the terms of and representations made in legal documents they prepare for their clients. Kastner, 231 S.W.3d at See McCamish, 991 S.W.2d at See, e.g., Newton v. Meade, 143 S.W.3d 571 (Tex. App. Dallas 2004, no pet.); Kemlico Petroleum v. Morrison & Shelton, 91 S.W.3d 921 (Tex. App. Fort Worth 2002, pet. denied). 15 Parsons v. Turley, 109 S.W.3d 804 (Tex. App. Dallas 2003, pet. denied). 16 See Burrow v. Arce, 997 S.W.2d 229 (Tex. 1999); Latham v. Castillo, 972 S.W.2d 66, 69 (Tex. 1988); Gibson v. Ellis, 126 S.W.3d 324 (Tex. App. Dallas 2004, no pet.); Kemlico, 91 S.W.3d at 923; Sullivan v. Bickel & Brewer, 943 S.W.2d 477, 481 (Tex. App. Dallas 1995, writ denied); Jampole v. Matthews, 857 S.W.2d 57 (Tex. App. Houston [1 st Dist.] 1993, writ denied). San Antonio Lawyer 12 March-April 2009

4 have little to prove in the way of damages. Renick acted as the Murphy/Brocks agent to guide them through the lawsuit and to deal with the lawyers. When the Blockbuster defendants filed a counterclaim against Renick, the defendants lawyers negotiated a $7.5-million settlement. Just shy of four years later, the Murphy/Brocks sued Renick and the defendant lawyers for breach of fiduciary duty and fraud, relying on the four-year limitations period. The Murphy/Brocks alleged fraud and that the lawyers had divided loyalties, failed to inform them of material facts as a conflict arose, and failed to make full and fair disclosure of every facet of the proposed settlement of the Blockbuster case. They sought fee forfeiture and imposition of a constructive trust. The defendant lawyers moved for summary judgment on the breach of fiduciary duty and fraud claims, arguing the claims constituted impermissible fracturing of a professional negligence claim and were barred by the two-year statute of limitations. The trial court entered summary judgment in favor of the lawyers, and the Murphy/Brocks appealed. On appeal, the court noted the lack of clarity in this area of the law where some Texas courts recognize that breach of fiduciary duty claims alleging the lawyer obtained an improper benefit or improperly failed to disclose his conflict of interest were not professional negligence claims, while other courts had held these claims are professional negligence claims if the allegation is really that the lawyer s conflict of interest prevented him from adequately representing the client. The court opined that the confusion may be due to the fact that the relationship between the lawyer and client is inherently a fiduciary relationship. 26 The Murphy court explained that, in non-lawyer cases where there is a fiduciary relationship, many of the claims against the fiduciary are labeled breach of fiduciary duty claims. With lawyers, however, the standard of care in negligence claims is defined by characteristics of that inherent fiduciary relationship. Courts refer to the fiduciary relationship that the lawyer has with the client and use fiduciary standards to define the standard of care required of lawyers. 27 Courts applying these fiduciary standards generally conclude that the claims are really negligence, not breach of fiduciary duty claims. The Murphy court reasoned that it must discern the real substance of the claim to determine if it pertained to the quality of representation (professional negligence) or breach of fiduciary duty, writing: We are not bound by the labels the parties place on their claim. 28 Although the Murphy/Brock lawyers argued the claims alleged conflict of interest, the defendant lawyers pointed out that the allegations did not claim self-dealing, intentional misconduct, gaining some improper benefit, stealing, or fraudulent billing practices. The lawyers argued that the claims were negligence claims because they essentially complained about the nature of the legal advice given. The court examined the specific allegations of breach of fiduciary duty. 29 After noting its prior language that an attorney s duty of care includes disclosure of any conflict of interest that may affect the attorney s representation, continued on page See Gibson, 126 S.W.3d at 324; Goffney v. Rabson, 56 S.W.3d 186, 193 (Tex. App. Houston [14 th Dist.] 2001, pet. denied); Kemlico, 91 S.W.3d at Willis v. Donnelly, 199 S.W.3d 262, 278 n. 33 (Tex. 2006). 19 See Sullivan, 943 S.W.2d at 477; T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218 (Tex. 1992). 20 See, e.g., Rangel v. Lapin, 177 S.W.3d 17, 24 (Tex. App. Houston [14 th Dist.] 2005, pet. denied) (concluding claims for DTPA violations and breach of contract were actually a claim for legal malpractice because the crux of the claim was that lawyers did not provide adequate legal representation); Aiken v. Hancock, 115 S.W.3d 26, 29 (Tex. App. San Antonio 2003, pet. denied) (allegations that lawyer failed to reveal he was unprepared for trial, falsely represented he was prepared, and falsely represented the expert witness was prepared to testify did not allege self-dealing, deception, or express misrepresentation in lawyer s legal representation sufficient to support a separate cause of action for breach of fiduciary duty); Kemlico, 91 S.W.3d at 924 (failure to timely designate expert witness, misleading clients to believe case ready for trial, was not breach of fiduciary duty, but a claim for legal malpractice); Ersik v. Davis & Davis P.C., 69 S.W.3d 268, 270 (Tex. App. Austin 2002, pet. denied) (allegation that law firm misrepresented its competency was an impermissibly fractured claim for legal malpractice); Goffney, 56 S.W.3d at 193 (allegation of breach of fiduciary duty no more than a claim for legal malpractice); Greathouse v. McConnell, 982 S.W.2d 165, (Tex. App. Houston [1st Dist.] 1998, pet. denied) (misrepresentations alleged as breach of fiduciary duty, fraud, breach of contract were really claims for legal malpractice for not providing adequate legal representation); Klein v. Reynolds, Cunningham, 923 S.W.2d 45, 49 (Tex. App. Houston [1 st Dist.] 1995, no writ) (allegation lawyer filed defective appeal without obtaining extension was legal malpractice, not claim for breach of fiduciary duty, violation of DTPA, or breach of contract); Murphy v. Mullin Hoard & Brown LLP, 168 S.W.3d 288 (Tex. App. Dallas 2005, no pet.) (although claim for breach of fiduciary duty, allegations were negligent drafting/review of documents and failure to inform clients of defects in the documents; no complaint of improper benefit received by lawyers; court concluded breach of fiduciary duty claim actually claim for professional negligence). 21 See, e.g., Latham, 972 S.W.2d at 69 (DTPA and fraud); Newton v. Meade, 143 S.W.3d 571, 574 (Tex. App. Dallas 2004, no pet.) (contract); Sullivan v. Bickel & Brewer, 943 S.W.2d 477, 481 (Tex. App. Dallas 1995, writ denied); See also Burrow v. Arce, 997 S.W.2d 229 (Tex. 1999); Jackson Law Office, P.C. v. Chappell, 37 S.W.3d 15 (Tex. App. Tyler 2000, pet. denied) (breach of fiduciary duty). 22 Kahlig v. Boyd, 980 S.W.2d 685, 689 (Tex.App. San Antonio 1998, pet. denied). 23 Deutsch v. Hoover, Bax & Slovacek, L.L.P., 97 S.W.3d 179, (Tex. App. Houston [14 th Dist.] 2002, no pet.). 24 Id. at Archer v. Medical Protective Co., 197 S.W.3d 422, (Tex. App. Amarillo 2006, pet. denied). 26 Murphy v. Gruber, 241 S.W.3d 689, 696 (Tex. App. Dallas 2007, pet. denied). 27 Id.; Two Thirty-Nine Joint Venture v. Joe, 60 S.W.3d 896 (Tex. App. Dallas 2001), rev d on other grounds, 145 S.W.3d 150 (Tex. 2004). 28 Murphy, 241 S.W.3d at Id. at 698 ((1) lawyers continued to represent Renick and Brock after Renick was sued by counterclaim without obtaining written waiver of conflict of interest; (2) lawyers represented to Brocks claims not worth pursuing at trial if Renick settled despite fact that lawyers knew Brock had viable and valuable claims independent of Renick; (3) lawyers urged Brock to accept $7.5 million aggregate in settlement offer, which Brock did relying on lawyer s duty of loyalty and purported truthfulness of lawyer representation; (4) lawyer engaged in self-dealing by representing both Renick and Brock after Renick sued by counterclaim and no longer wanted to pursue case; (5) lawyers agreed to set aside finding of court in Howell case after advising Brock how case decided most of issues leaving very little to do to prove damages, then charging Brock exorbitant hourly fees to reestablish and prove issues set aside; (6) lawyers divided aggregate settlement, half and half, despite knowledge Renick s cause of action probably barred by limitations while Brock s was not; (7) lawyers chose own interest in obtaining multi-million-dollar fee in Howell case through actions in that case detrimental to Brock s interests; (8) lawyers failed to represent Brock s interest with undivided loyalty; (9) lawyer failed to inform client of all material facts as soon as conflict arose; (10) lawyer failed to make full and fair disclosure of every facet of proposed settlement.) 30 Id. 31 Id. at Id. San Antonio Lawyer 13 March-April 2009

5 Published by NationWide Publishing SA 1922 Great Ridge San Antonio, TX Publisher - Ron L. Hogue rlhogue1222@satx.rr.com Fax: For information on advertising in the San Antonio Lawyer magazine Call The San Antonio Lawyer is published bimonthly by Nationwide Publishing SA, on behalf of the San Antonio Bar Association. Reproduction in any manner of any material, in whole or in part, is prohibited without the express written consent of the Editor in Chief. Material contained herein does not necessarily reflect the opinion of the Publisher or its staff. San Antonio Lawyer, the San Antonio Bar Assocation and the Publisher reserve the right to edit all materials and assume no responsibility for accuracy, errors or omissions. San Antonio Lawyer and the Publisher do not knowingly accept false or misleading advertisements, false or misleading editorials and do not assume any responsibility should such editorials or advertising appear. Developments in Attorney Litigation the court held that the allegations complained about the quality of the lawyer s representation, i.e., the lawyer s failure to properly advise, inform, and communicate with the plaintiffs about the case claims of professional negligence. 30 Although Murphy/Brocks alleged self-dealing in continuing to represent both Renick and Brock, there was no allegation the lawyers deceived them, pursued their own pecuniary interest over the client s interest, or obtained any improper benefit through the continuing representation of both clients. 31 Additionally, the allegation that the lawyers chose their own interest in obtaining a multi-million-dollar fee in the Howell case, to the detriment of their clients, did not allege dishonesty or intentional deception to support a breach of fiduciary claim. Although labeled breach of fiduciary duty and fraud, the court concluded that the allegations really asserted claims for professional negligence because the continued from page 13 Dear Editor, essence of the claim alleged that the lawyer s representation fell below the quality required under the law. Thus, the court determined the trial court had properly determined the claims were for legal malpractice and barred by the two-year statute of limitations. Mr. Griesenbeck is an Attorney with Plunkett & Gibson, Inc. Ms. Martin recently graduated from St. Mary s University School of Law and joined Plunkett & Gibson last Fall as an Associate. Advertisers Index Assn. of Atty. Mediators 23 e-fense, Inc. 21 La Scala Restaurant 4 Lindemann Productions 4 Hugh McWilliams 4 Law Office of Jeff Small 18 TXLawyers.com 18 Tower Life Building 2 Weston Centre 24 Re Buckert, Ethics Follies: Lee Cusenbary s Brainchild, Jan-Feb 2009: Wow, Amanda! Fantastic article. The photos, the stories, the Ethical Life Award. It is a wonderfully crafted piece of writing. Thank you very much for your generous and thoughtful approach to the ethics message and for capturing the unusual blend of art and law that is Ethics Follies. Everyone in my office has read it and loved it. C. Lee Cusenbary San Antonio Lawyer 22 March-April 2009