Professional Liability

The Fifth Court has written key opinions in at least two basic areas of attorney malpractice law.  The first, Rogers v. Zanetti, arose after a jury awarded millions of dollars in damages and the Fifth Court affirmed.  The defendants in that case then became plaintiffs by suing their lawyers at Andrews Kurth. The county court at law granted summary judgment for the defendants, and the Fifth Court Appeals affirmed. In a malpractice case based on an attorney’s conduct in connection with litigation, the plaintiff has to demonstrate that it would have prevailed in the prior case but for the lawyer’s negligence — i.e., the “case within a case.”  Concluding that the plaintiffs’ proof on that point was conclusory and speculative, the Court held that there was no evidence in the summary judgment record to establish causation of any injury to the plaintiffs.No. 05-14-00733-CV, 2015 WL 3658024 (June 15, 2015, pet. filed) (mem op.)

The second involves the “fracturing” of claims.  “The anti-fracturing rule prevents plaintiffs from converting what are actually professional negligence claims against an attorney into other claims such as fraud, breach of contract, breach of fiduciary duty, or violations of the DTPA.”  Pak v. Harris, 313 S.W.3d 454, 457 (Tex. App.—Dallas 2010, pet. denied) (citing Beck v. Terry, 284 S.W.3d 416, 426-27 (Tex. App.—Austin 2009, no pet.))   The Court found a violation of that rule when “[t]he allegations involve[d] the question of whether [Defendant] failed to exercise the degree of care, skill, or diligence in performing his duty to inform appellants about issues that could arise during the representation of multiple clients,” noting: “Even if a complaint implicates a lawyer’s fiduciary duties, it does not necessarily follow that such a complaint is actionable apart from a negligence claim.”  Id. at 458.

Pak drew upon Murphy v. Gruber, an earlier Dallas Court of Appeals case that also applied that rule to reject fiduciary duty claims.  241 S.W.3d 689, 696 (Tex. App.–Dallas 2007, pet. denied) (“[W]ith lawyers, the standard of care in negligence claims is often defined by the characteristics of that inherent fiduciary relationship. . . . And courts have most often applied those standards to conclude that the claims are really negligence, not breach-of-fiduciary duties claims.”)  Murphy in turn built upon other Dallas case law on the issue.  See id. at 694, 696 (citing, inter alia,  Murphy v. Mullin, Hoard & Brown LLP, 168 S.W.3d 288 (Tex. App.–Dallas 2005, no pet.))