Not counsel? Not mandamus.

In re Guess provides a basic reminder about the limits of pro se representation and legal services from non-lawyers: “Before the Court is relator’s October 5, 2017 petition for writ of mandamus. Bruce Bryant filed this petition for writ of mandamus as relator’s “authorized representative.” Mr Bryant is not an attorney, is not a party to the litigation and, therefore, cannot file a petition on behalf of relator.” Nos. 05-17-01163-CV et seq. (Oct. 11, 2017) (mem. op.)

No alternative? No expert opinion.

alternativesIn the legal malpractice case of Ashton v. KoonsFuller, P.C., the Fifth Court affirmed a summary judgment for the defendant law firm. Among other issues addressed, the Court criticized the testimony of the plaintiff’s expert about the defendant’s billing, providing an illustration of the commonly-litigated Daubert/Robinson issue about whether an expert adequately considered alternatives to his or her conclusion: “[W]hile Hill disagrees with the amount of time KoonsFuller spent on discovery matters and preparing for mediation, the affidavit does not state how much time would have been reasonable. Similarly, Hill complains about the number of lawyers and legal assistants billing for those services, but does not suggest what an appropriate number would be.” No. 05-16-00130-CV (May 10, 2017) (mem. op.)

Adverse judgment, lots of fallout

2000px-united_states_fallout_shelter_sign-svgHenry S. Miller Commercial Co. lost a trial on a fraud claim but succeeded in a later malpractice claim against its trial counsel. The Fifth Court resolved two issues – (1) postjudgment assignment of malpractice claims as part of a reorganization was acceptable where “Here, HSM asserted its own malpractice claim against the Lawyers in its own name. It pursued its own claim through trial and judgment. Under these circumstances, HSM’s right ‘to bring [its] own cause of action for malpractice is not vitiated’ by the assignment to its judgment creditors” (applying Tate v. Goins, Underkofler, Crawford & Langdon, 24 S.W.3d 627, 629 (Tex. App.—Dallas 2000, pet. denied)); and (2) the trial court erred in dismissing HSM’s claim for gross negligence based on the failure to designate a key responsible third party. Accordingly, because a new trial was required on punitive damages, it was also required on compensatory damages, and thus liability as well. Henry S. Miller Comm’l Co. v. Newsom, Terry & Newsom LLP, No. 05-14-01188-CV (Sept. 14, 2016) (mem. op.)

The first thing we do, let’s pay all the lawyers . . .

movie-theaterSchultz, owner of a chain of movie theaters, did not want to pay Banowsky, a licensed Texas attorney, for helping Schultz find a theater location.  Schultz won summary judgment based on the Texas Real Estate Licensing Act,  primarily because Banowsky admitted that his work did not involve legal services.  The Fifth Court reversed: “[Schultz] argues that Banowsky’s construction of the Act is both unreasonable and favors the individual interest of an attorney over the interest in protecting the public from unlicensed, unscrupulous, or unqualified persons.  But the fact remains that the plain language of the statute exempts attorneys from all requirements of the Act.”  Banowsky v. Schultz, No. 05-14-01624-CV (Feb. 10, 2016) (mem. op.)

Law firm immune from suit by opponent.

Highland Capital sued the Looper Reed law firm, who represented a former employee in litigation with Highland, alleging that the firm committed several torts against Highland during the course of that representation.  The Fifth Court affirmed the dismissal of those claims on immunity grounds: “[T]he actions themselves—acquiring documents from a client that are the subject of litigation against the client, reviewing the documents, copying the documents, retaining custody of the documents, analyzing the documents, making TexasBarToday_TopTen_Badge_Smalldemands on the client’s behalf, advising a client to reject counter-demands, speaking about an opposing party in a negative light, advising a client on a course of action, and even threatening particular consequences such as disclosure of confidential information if demands are not met—are the kinds of actions that are part of the discharge of an attorney’s duties in representing a party in hard-fought litigation.”  Highland Capital Management LP v. Looper Reed & McGraw, PC, No. 05-15-00055-CV  (Jan. 14, 2016) (mem. op.) (applying Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015)).

Side-Switching Attorney Leads to Disqualification and DWOP

After an automobile collision, the Gomez family sued Sol Ly for negligence. Ly was represented by the Herald law firm, which also employed attorney Tim Brandenburg. But while the suit was pending, Brandenburg left Herald to join the law firm of Domingo Garcia, which represented the plaintiffs. Based on the defendant’s oral objection, the trial court granted a mistrial and ordered the defendant to file a motion to disqualify, which was subsequently granted. The plaintiffs failed to obtain substitute counsel, and the case was dismissed for want of prosecution. The Court of Appeals affirmed. The plaintiffs’ pro se motion to reinstate the case following the dismissal challenged only the disqualification, and not the plaintiffs’ failure to appear at the new trial setting. Without a showing that the failure to appear was adequately justified, the Court of Appeals could not conclude that the trial court had abused its discretion in denying the motion to reinstate.

Gomez. v. Sol, No. 05-14-00893-CV

Order to Produce Privileged Document Is Mandamus-Ebola

Almost a year after the Ebola virus and dozens of news crews arrived in Dallas, the Court of Appeals has conditionally granted mandamus to prevent Texas Health Resources’ insurer from being required to produce a privileged note regarding a plaintiff’s Ebola-related claims. Nina Pham, who contracted the disease while working as a nurse at Presbyterian Hospital, has sued THR on a variety of tort claims for the injuries she sustained from the disease. The single document at issue reflects a conversation among the insurer’s claims adjuster, THR’s associate general counsel, and its risk manager. Although the insurer and its claims adjuster were not parties to the lawsuit, the Court nevertheless held that the communications reflected in the document were privileged. Because the note was made in the course of investigating Pham’s claim, and because the insurer represents the employer rather than itself on claims involving the employer’s liability policy, the note reflected a confidential communication within the scope of the attorney-client privilege.

In re Texas Health Resources, No 05-15-00813-CV

On Barratry Remedies

The Court of Appeals has reversed a summary judgment in favor of the attorney defendants in a civil barratry case. The plaintiffs were victims of a pipeline explosion. Their case against the pipeline company eventualy settled, and the lawyers collected their 40% contingency fee. But the plaintiffs learned that they had actually been solicited by a private investigator working for their attorneys, so they sued to rescind the fee agreement and recover their contingency fees. The Court of Appeals agreed that rescission was an available remedy for barratry, and that the attorney defendants had not established their former clients would be unable to make counter-restitution for the benefits they had received from the lawyers.

Neese v. Lyon, No. 05-13-01597-CV