JOINT VENTURING CASES Law Practice Management. Friday, June 19, :30 p.m. 5:00 p.m.

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1 JOINT VENTURING CASES Law Practice Management Randy O. Sorrels Abraham Watkins Nichols Sorrels Agosto & Friend Houston Friday, June 19, :30 p.m. 5:00 p.m.

2 Randy Sorrels Location: Houston, Texas Phone: Fax: Randy Sorrels has proven himself to be a leader both inside and outside the courtroom. Inside the courtroom, Sorrels has established his presence as a double board certified trial lawyer in both personal injury and civil trial law a distinction held by less than.1% of lawyers in Texas. And though his practice is not limited to medical malpractice, Best Lawyers in America has recently named him Lawyer of the Year in Plaintiffs Medical Malpractice Law in Houston for Texas Monthly has continued to recognize Sorrels as one of the Top 100 Lawyers in Texas for the sixth straight year again, a distinction given to less than.1% of lawyers in the state. He handles cases involving serious personal injury, catastrophic events, wrongful death, and significant business disputes. Outside the courtroom, Sorrels has been awarded some of the highest honors recognized by the State Bar of Texas. He has been awarded the State Bar of Texas' President's Award (recognizing the one Texas Lawyer who provided the most outstanding contributions through distinguished service to the lawyers of Texas), the Judge Sam Williams Award (recognizing the Texas lawyer who provides the greatest contribution to both local bars and the State Bar of Texas), and the Houston Bar Association President's Award (recognizing significant contributions to an HBA program). Early in his career, Sorrels was honored with the Woodrow B. Seals Outstanding Young Lawyer of Houston Award (recognizing the one young Houston lawyer who exemplified significant professional traits both inside and outside the practice of law). Randy Sorrels currently serves as the President of the Texas Association of Civil Trial and Appellate Specialists, and Chair of the Fellows of the Texas Bar Foundation. He has served as the President of the Houston Bar Association, President of the Houston Trial Lawyers Association, President of the Houston Trial Lawyers Foundation, Vice President of the Texas Trial Lawyers Association, Trustee of the Texas Bar Foundation, Director of the State Bar of Texas (two terms), Commissioner of the Equal Access to Justice Commission, Trustee of the Texas Supreme Court Historical Society, and is currently on the Board of Directors at South Texas College of Law. Sorrels started his legal career at Fulbright & Jaworski, where he represented doctors, hospitals, insurance companies, and businesses in the state of Texas who were accused of civil wrongdoing. He graduated Magna Cum Laude from South Texas College of Law in 1987, where he was on the Law Review and was a member of the nationally recognized Board of Advocates. South Texas has honored Sorrels with its highest honor the Dean's Medal, as well as its Public Service Award (the inaugural award). Recently South Texas renamed its legal clinics The Randall O. Sorrels Legal Clinics, which represents 15,000 square feet of new, state-of-the-art facilities to bring together clients with unmet legal needs, and students who are eager to work with those clients under direct supervision of their professors. Prior to law school, Sorrels graduated Magna Cum Laude from Houston Baptist University where he was recognized as an NCAA Academic All-American in Sorrels attended HBU on a soccer scholarship, and the soccer field at the university now carries his name Sorrels Field. While at school, he was recognized as the Outstanding Student in both Political Science and Speech Communications. In the greatest honor the university gives for alumnus, Randy was named as HBU's Outstanding Alumnus of the Year for 2009, and he continues to be involved in alumni events and meetings. Randy Sorrels serves as the managing partner of Abraham, Watkins, Nichols, Sorrels, Agosto & Friend, where he has practiced since Since taking over the leadership of the firm, Abraham Watkins has become more diverse, more community involved, more academically accomplished, and more active in the courtroom. The firm touts seven Texas Board Certified lawyers.

3 Joint Venturing the Case Randall O. Sorrels and Eric K. Gerard This article addresses a middle ground in the legal practice between independence and partnership. Joint venturing cases offers flexibility and advantages drawn from both ends of the spectrum. Along with these benefits, however, come complications in the division of fees, mandatory client disclosures, conflicts of interest, advertising restrictions, malpractice liability, and the potential for disputes between the venturing parties themselves. These considerations are explained below. While based on the authors experience primarily as plaintiffs lawyers working on contingency fee in personal injury and business litigation, many of the observations and guidelines discussed readily apply to other contexts, including hourly and, to a lesser extent, transactional work. I. What is joint venturing a case? The term joint venture is of course both common business parlance and a frequent commercial arrangement. Commercial entities often form joint ventures to pursue projects of limited scope and duration. Within the legal industry, however, the concept of joint venturing a lawsuit may be more foreign. The joint venture has a precise legal definition. It is an association of multiple entities joining to pursue a common end while distributing the risks and costs of the enterprise between them although, practically speaking, one of the participants in the joint venture often will end up bearing all of the risks and costs. In the business world, to qualify as a joint venture under Texas law, the association must be based on either an express or implied agreement containing these essential 1

4 elements: (1) a community of interest in the venture, (2) an agreement to share profits, (3) an agreement to share losses, and (4) a mutual right of control or management of the enterprise. 1 Both risk and reward must be shared. 2 Of course, based on this definition, many businesses not designed as joint ventures would so qualify partnerships chief amongst them. Indeed, as a general rule, joint ventures and partnerships are governed by the same rules. 3 Yet the continued legal and practical separation of the entities and, more saliently, the duration of the association distinguish the joint venture from a partnership. As numerous Texas decisions make clear, the principal difference between a joint venture and a partnership is that a joint venture is limited to a particular enterprise. 4 Between law firms, the term is used to describe both single-matter associations and ongoing arrangements involving a particular category of cases. For example, a commercial lawyer retained by a seriously injured client may choose to partner with an firm that regularly brings such matters to trial, as doing so will add credibility to settlement negotiations and ensure the matter is properly prepared should it need to go to a jury. Or, two plaintiff s firms may join up in 1 Coastal Plains Development Corp. v. Micrea, Inc., 572 S.W.2d 285, 287 (Tex.1978). 2 See, e.g., Ben Fitzgerald Realty Co. v. Muller, 846 S.W.2d 110, 121 (Tex. App. Tyler 1993), writ denied (June 23, 1993) ( For a joint venture or a partnership to exist, there must be an agreement to share both profits and losses, if any. ). 3 Henrich v. Wharton County Livestock, Inc., 557 S.W.2d 830, 833 (Tex.Civ.App. Corpus Christi 1977, writ ref'd n.r.e.). 4 State v. Houston Lighting & Power Co., 609 S.W.2d 263 (Tex.Civ.App. Corpus Christi 1980, writ ref'd n.r.e.); North Texas Lumber Co. v. Kaspar, 415 S.W.2d 470, (Tex.Civ.App. Dallas 1967, writ ref'd n.r.e.); Muller, 846 S.W.2d at 120 (Tex. App. Tyler 1993), writ denied (June 23, 1993). 2

5 representing a number of clients perhaps even hundreds of thousands of claims in mass tort litigation concerning a particular drug. In that case, the association is ongoing, enduring past resolution of a single matter until the stream of litigation dries up. Either way, there is no formal, legal combination. It is not a merger. The firms remain distinct entities, retaining their own names and identities and envisioning a future in which the two may no longer cooperate. They usually continue working separately on other matters unrelated to the subject of the joint venture, without the other s involvement, and may even joint venture with other firms on those other cases. Rather than marry, they are content to date for as long as it serves their mutual interests, and they need not be monogamous. Why might two firms enter such an unconstrained romance? Commonly, economies of scale in costly litigation drive them together. To continue the example above, a small plaintiff s firm with a steady flow of defective product liability claims may not have the resources to take on a big pharmaceutical company or auto manufacturer and the herd of big-firm defense lawyers kept in their stables. Partnering with another firm, or a group of firms, may allow them to come closer to matching the manpower and monetary resources of their adversaries. In other circumstances, one firm may generate the case leads but lack the ability to properly prosecute them without help. A joint venturer may bring the experience and expertise needed to execute. This logic may prove particularly persuasive in the context of a complicated cases such as products liability, medical malpractice, or 3

6 toxic tort actions, where the technical nature of the subject matter and attendant law merits the inclusion of a firm accustomed to such challenges. Whatever the reason, joint venturing can offer real benefits over going it alone. It also brings with it certain ethical and legal concerns not present in the single-firm model. These include rules related to the division of fees, malpractice liability, and disputes between joint venturers. II. Fee Splitting Among Joint Venturers Perhaps unsurprisingly, the subject in joint venturing that generates the most interest is the division of fees. The Texas Disciplinary Rules of Professional Conduct ( Rules ) define the terms as a single billing to a client covering the fee of two or more lawyers who are not in the same firm. 5 Rule 1.04 provides the mainstay of the Rules governing referral fees and fees splitting. 6 While most frequently invoked in the context of contingency-fee litigation, these guidelines apply equally to all legal representation, litigation or otherwise. 7 As a threshold matter, the decision to refer a case or associate with other counsel should be made based solely on the client s best interest. 8 This requires some due diligence. The referring or associating lawyer must conduct a reasonable 5 Tex. Disciplinary Rules Prof l Conduct R. 1.04, Comment 10, reprinted in Tex. Gov t Code Ann., tit. 2, subtit. G, app. A (West 2005). 6 Tex. Disciplinary Rules Prof l Conduct R Tex. Disciplinary Rules Prof l Conduct R. 1.04, Comment 10 ( A division of fees facilitates association of more than one lawyer in a matter in which neither alone could serve the client as well, and most often is used when the fee is contingent and the division is between a referring or associating lawyer initially retained by the client and a trial specialist, but it applies in all cases in which two or more lawyers are representing a single client in the same matter, and without regard to whether litigation is involved. ). 8 Tex. Disciplinary Rules Prof l Conduct R. 1.04, Comment 13. 4

7 investigation of the client s legal matter and refer the matter to a lawyer whom the referring or associating lawyer reasonably believes is competent to handle it. 9 Hence, the small plaintiff s firm with a pipeline of pharmaceutical torts should not likely joint venture with a family law firm with no experience in the area, however successful, respected, or well capitalized the latter may be. After the association of counsel is deemed in the client s best interest, the firms must agree on how to split the fees among them if they decide to join forces. Paragraph (f) of Rule 1.04 allows the lawyers to divide a fee either on the basis of the proportion of services they render or if each lawyer assumes joint responsibility for the representation. 10 This provision marks a change from the pre-2005 guidelines that permitted a lawyer to forward a matter to another for a referral fee despite having done virtually no work on the matter, the pure forwarding fee arrangement that had been countenanced by the Texas ethics rules since This agreement to pay a referral fee, in the context of a joint venture or otherwise, 9 Tex. Disciplinary Rules Prof l Conduct R. 1.04, Comment 13; see also Tex. Disciplinary Rules Prof l Conduct R Tex. Disciplinary Rules Prof l Conduct R. 1.04, Comment Tex. Disciplinary Rules Prof l Conduct R. 1.04, Comment 14 ( In the aggregate, the minimum activities that must be undertaken by referring or associating lawyers pursuant to an arrangement for a division of fees are substantially greater than those assumed by a lawyer who forwarded a matter to other counsel, undertook no ongoing obligations with respect to it, and yet received a portion of the handling lawyer's fee once the matter was concluded, as was permitted under the prior version of this rule. ); see also Judge David Evans, The Practicalities of the New Referral Fee: To Refer or Not to Refer? That is the Question, Ch. 11, State Bar of Texas, 2005 Spring Training Course (discussing forwarding-fee arrangements). 5

8 must occur before the referral is actually made, or it may be unenforceable for want of consideration. 12 Rule 1.04(g) provides that the client must be informed of the arrangement and consent in writing to its essential terms prior to the time of the association or referral proposed. 13 These essential terms are specified in subparagraph (f)(2) of Rule 1.04: (1) the identity of all lawyers or law firms who will participate in the feesharing agreement; (2) whether fees will be divided based on the proportion of services performed or by lawyers agreeing to assume joint responsibility for the representation; and (3) the share of the fee that each lawyer or law firm will receive or the basis on which the division will be made if the division is based on proportion of service performed. 14 Comments to the Rules make clear that failure to disclose these specific terms, even if the client has countenanced the association generally, does not constitute sufficient client confirmation within the meaning of this rule. 15 Absent full disclosure and written consent, the agreement may be deemed 12 See Fleming v. Campbell, 537 S.W.2d 118, 120 (Tex. Civ. App. Houston [14th Dist.] 1976), writ refused NRE (Oct. 6, 1976). 13 Tex. Disciplinary Rules Prof l Conduct R. 1.04, Comment Tex. Disciplinary Rules Prof l Conduct R. 1.04; see also Tex. Disciplinary Rules Prof l Conduct R. 1.04, Comment Tex. Disciplinary Rules Prof l Conduct R. 1.04, Comment 15; see also In re Wright, 138 Fed. Appx. 690, 696 (5th Cir. 2005) ( We read subpart (f)(1)(iii) to require that the fee sharing agreement between [the attorneys] must be in writing and signed by the client. The mere authorization to associate other counsel in the contingent fee agreement, without setting out the fee splitting arrangement between [the attorneys], or even identifying [the associating attorney], does not satisfy this subpart. ); Tex. Disciplinary Rules Prof l Conduct R. 1.04, Comment 16. 6

9 unenforceable as contrary to public policy. 16 The attorneys may then recover only the reasonable value of their services and necessary expenses, regardless of the agreed-upon fee. 17 Further, each attorney or firm in the joint venture must have a direct attorney-client relationship with the client; one attorney s mere promise to pay a referral fee to another attorney with whom the former was joint venturing the case does not entitle the latter to recovery of attorney fees. 18 On its face, fee-splitting based on the assumption of joint responsibility appears to more closely align with the definition of the joint venture under Texas law set forth above, which requires a mutual right of control. 19 Indeed, the Comments to ABA Model Rule 1.5 explain that [j]oint responsibility for the representation entails financial and ethical responsibility as if the lawyers were associated in a partnership. 20 Comments to the Texas Rules, however, provide only that joint representation entails ethical and perhaps financial responsibility for the representation, going on to clarify that attorney duties need not be evenly split. 21 The referring lawyer is not required to attend depositions or hearings or even request copies of the pleadings and correspondence; indeed, such activities may be 16 See, e.g., Lemond v. Jamail, 763 S.W.2d 910, 914 (Tex. App. Houston [1st Dist.] 1988), writ denied (May 17, 1989). 17 Tex. Disciplinary Rules Prof l Conduct R. 1.04(g). 18 Mallory v. Arctic Pipe Inspection Co., Inc., CV, 2014 WL , at *4 (Tex. App. Houston [1st Dist.] Feb. 20, 2014), review denied (Feb. 6, 2015). 19 Muller, 846 S.W.2d at Model R. Prof. Conduct 1.05, Comment Tex. Disciplinary Rules Prof l Conduct R. 1.04, Comment 13. 7

10 discouraged, as they can add expenses to the clients costs. 22 The referring lawyer s base level of duties is more administrative in nature, demanding simply that the attorney reasonably investigate the claims, refer the case to a competent lawyer, monitor the matter, and communicate necessary information to the client. 23 Adequate monitoring and communication entails keeping reasonably abreast of case developments, responding to client questions, and assisting the handling lawyers where necessary. 24 Viewed through the lens of these flexible requirements, joint responsibility takes on a paler hue than a full-blooded joint venture. Conversely, a proportionate responsibility arrangement may actually more closely resemble a joint venture in the traditional sense. As Judge David Evans wrote, [w]hen two lawyers agree to work a case together and to divide their fees proportionally, their relationship becomes one of co-counsel and is not one of referring lawyer and handling lawyer. 25 Fees between firms are divided proportionate to the services each rendered. 26 Both firms must perform substantial legal services in handling the case and base their method of division on the amount of services rendered, the level of responsibility assumed, and the value of the services rendered. 27 Provided the agreed division is properly disclosed at the outset, that division will control even if the proportion of actual work performed diverges 22 Id. 23 Id.; see also Tex. Disciplinary Rules Prof l Conduct R Tex. Disciplinary Rules Prof l Conduct R. 1.04, Comment Evans, supra note Tex. Disciplinary Rules Prof l Conduct R Id. 8

11 from that amount as the representation unfolds. 28 Again, to be enforceable, this arrangement must be disclosed to and approved in writing by the client before the joint venture begins. III. Conflicts of Interest and Duties to the Joint Venturer s Employer Another threshold issue in deciding whether joint venturing is viable concerns conflicts of interest. Rule 1.06 sets forth the general duty to avoid conflicts of interest. It precludes representation of adverse parties in the same litigation, as well as of clients with direct and adverse interests in substantially related matters absent an effective waiver. 29 Failure to disclose a conflict may be actionable as claims of breach of fiduciary duty or professional negligence. 30 Before the 2005 reforms, at least one court found that receipt of a forwarding fee following the referral of a party adverse to an existing client did not constitute a violation of the conflicts rule, reasoning that the act of forwarding the file did not constitute legal representation of a material sort. 31 In the context of joint venturing, however, such a hands-off approach is untenable, and the two types of fee-splitting agreements available joint and proportional responsibility both entail genuine client representation. Hence, the joint venture s proposed representation must be checked against existing clients to ensure no conflicts would occur. 28 Tex. Disciplinary Rules Prof l Conduct R. 1.04, Comment Tex. Disciplinary Rules Prof l Conduct R See Murphy v. Gruber, 241 S.W.3d 689, (Tex. App. Dallas 2007, pet. denied). 31 See Polland & Cook v. Lehmann, 832 S.W.2d 729, 737 (Tex. App. Houston [1st Dist.] 1992), writ denied (Sept. 30, 1992). 9

12 Concomitant with the conflicts issue should be an assessment of the risks the joint venture may create for the firm and verification that the venturer is in compliance with relevant policies set by his current employer. Joint venturing clearly creates malpractice exposure for the firm to the extent it (or one of its attorneys acting as its agent) missteps in the joint venture. Moreover, as discussed below, vicarious or joint-and-several liability for the negligence or misconduct of the other venturers is a possibility, thereby creating additional exposure. Lastly, a moonlighting lawyer joint-venturing employer approval could be subject to breach of contract or breach of fiduciary duty claims if she failed to first present the opportunity to her employer and obtain approval to refer the case elsewhere. 32 Again, as with client dealings, disclosure is the key. IV. Malpractice Liability in Joint Ventures While joint venturing a case can offer certain advantages to going it alone, it also has the potential to create additional malpractice exposure. Unfortunately, this area of the law remains underdeveloped, with scant controlling authority from Texas and little more from jurisdictions elsewhere to provide meaningful guidance. As discussed above, a joint responsibility association under the Texas Rules need not entail equal responsibility. Texas permits far more flexibility than the near-partnership embrace that the ABA Model Rules demand. And, unlike the Model Rules, the arrangement does not give rise to default joint-and-several 32 See Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 203 (Tex. 2002) (associate may be liable for breach of contract or fiduciary duty where associate profits off referral of case to other firm). 10

13 liability like a partnership. 33 Proportionate responsibility arrangements, where each lawyer or firm accepts a specific share of duties may be even less likely to generate shared liability due to the clear demarcation of duties and compensation between the two sets of counsel. That said, pitfalls remain. Comments to the Rules unhelpfully provide that [w]hether [the division of fees] or any additional activities that a lawyer might agree to undertake, suffice to make one lawyer participating in such an arrangement responsibility for the professional misconduct of another lawyer who is participating in it and, if so, to what extent, are intended to be resolved by Texas Civil Practice and Remedies Code, ch. 33, or other applicable law. 34 The lacuna of Texas case law on the issue does little to clarify. What is clear, of course, is that both lawyers (or firms) are liable for their own negligence in the representation, as each represents the client. Further, referring lawyers have occasionally been held liable for negligently selecting the handling attorney, although there does not appear to be a reported example in Texas. 35 Finally, while not automatic, joint-and-several liability may be imposed for the negligence of the other attorney where the association meets the legal standard of a 33 See Tom Crosley and Tim Torres, Referral Fees, San Antonio Lawyer, Sept.-Oct Tex. Disciplinary Rules Prof l Conduct R. 1.04, Comment See, e.g., Noris v. Silver, 701 So. 2d 1238, 1239 (Fla. Dist. Ct. App. 1997) (referring lawyer liable for handling lawyer s negligence in failing to timely file suit); see also Andrew W. Martin, Jr., Legal Malpractice: Negligent Referral as a Cause of Action, 29 Cumb. L. Rev. 679 (1999); Douglas R. Richmond, Professional Responsibilities of Co-Counsel: Joint Venturers or Scorpions in a Bottle?, 98 Ky. L.J. 461 (2010). 11

14 joint venture discussed above, to which the law of partnership generally applies. 36 While hardly a set of bright-line rules, one may infer that the more intertwined the association appears, the more likely shared or vicarious liability could be imputed. V. Advertising by the Joint Venture As the joint venture exists to exploit perceived synergies between the firms, its participants may look to promote those advantages to potential clients, thereby embarking on the potentially precarious path of attorney advertising. Because the two (or more) firms associating in a joint venture remain distinct going concerns, their promotional efforts constitute cooperative advertising, subject to the special strictures of Rule 7.04(o). That Rule provides that a lawyer may not advertise as part of an advertising cooperative or venture of two or more lawyers not in the same firm unless the ad (1) states that it is paid for by the cooperating lawyers, (2) names each cooperating lawyer, (3) adhered to general requirements regarding advertising special competency (such as board certification), (4) does not imply special competency or superiority, and (5) otherwise complies with the Rules. 37 These additional restrictions reflect the Ethics Committee s apparently dim view of joint ventures as an easy conduit for consumer deception: the fact that several independent lawyers have joined together in a single advertisement increases the risk of misrepresentation or other forms of inappropriate expression See text accompanying notes 1 through 3 supra. 37 Tex. Disciplinary Rules Prof l Conduct R Tex. Disciplinary Rules Prof l Conduct R. 7.04, Comment

15 While the Rules require disclosure of each of the cooperating lawyers in the joint venture s advertisements, the venturers must be careful not to run afoul of the prohibitions found in Rule 7.01 paragraphs (a) and (e) concerning misleading firm names and trade names that they might otherwise choose to tout their association. 39 For example, joint-venturing firms cannot advertise under the name of one of their firms followed by the word Group (e.g., The Smith Law Group), as a recent State Bar Ethics Committee opinion determined. 40 They would nearly certainly also be barred from using a descriptive name referring to the subject or practice area of the joint venture (e.g., The Fen-Phen Law Firm or The Offshore Injury Firm ). Each of these constitutes an impermissible trade name violating Rule 7.01(a) s proscription of trade or fictitious names. 41 VI. The Relationship Between Joint Venturers Most of the discussion above addresses duties owed to clients, the breach of which may be actionable. Yet a joint venture, like any business association, may also give rise to disputes between the venturers themselves. As noted above, partnership law typically applies to the rights and obligations of join venturers. Importantly, however, and in contrast to partnership law, no fiduciary duty is created by a joint venture agreement between firms, rendering a cause of action on that ground untenable. 42 Further, while fiduciary duties may arise informally, 39 Tex. Disciplinary Rules Prof l Conduct R Prof l Ethics Comm. for the State Bar of Tex., Op. 591 (Jan. 2010). 41 Id.; see also Tex. Disciplinary Rules Prof l Conduct R See Dardas v. Fleming, Hovenkamp & Grayson, P.C., 194 S.W.3d 603, 620 (Tex. App. Houston [14th Dist.] 2006, pet. denied) (citing Schlumberger Tech. Corp. v. Swanson,

16 they must exist prior to, and apart from, the agreement made the basis of the suit. 43 Similarly, the joint venture normally does not create a duty of good faith and fair dealing, as under Texas law no such duty exists in ordinary commercial transactions. 44 A standard joint venture between law firms qualifies as such a transaction. 45 A joint venturer s actionable claims are thus more likely to be based on, for example, breach of the joint venture or referral agreement, reflecting the arm s-length nature of this particular model of association. VII. Conclusion The joint venture offers the advantage of expanding one s practice without taking the more lasting and consequential step of a full partnership. The associating lawyers can leverage their combined expertise and financial resources to take on more or new kinds of cases that each could not do alone, at least not as profitably. Further, the parties need only cooperate where their ambitions and assets overlap, free to develop their practices in divergent directions outside the joint venture while reaping the benefits of their union for as long as it may last. These benefits, however, come with risk. Most obvious is the commitment to shoulder some of the financial burden should the enterprise prove unsuccessful. Additionally, the arrangement implicates concerns regarding client disclosure and S.W.2d 171, 176 (Tex.1997)); cf. Hughes v. St. David's Support Corp., 944 S.W.2d 423, 425 (Tex. App. Austin 1997), writ denied (Jan. 16, 1998) ( It is well established that partners are charged with a fiduciary duty. ). 43 Swanson, 959 S.W.2d at Formosa Plastics Corp. USA v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 52 (Tex.1998). 45 Dardas, 194 S.W.3d at

17 consent, conflicts of interest, and malpractice liability broader and more complicated than those that exist when practicing independently. And, in the end, the transient nature of the association may do less to dissuade dissatisfied participants from litigation than would a full partnership, where breaking up is harder to do. The bond between the joint venturers is temporary, purposeful, and essentially transactional in nature. It provides a relationship of convenience one whose future may be finite, but which can prove quite satisfying while the parties interests remain aligned. 15

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