law-malpractice-legal | professional liability | standard of care, misconduct, neglect, negligence, gross
negligence, negligence per se | suit within suit element | medical malpractice case law | client grievances |
attorney-client disputes and litigation | grievance process | excessive attorney's fees | charging an
unsconscionable fee |
“Legal malpractice is not the only cause of action under which a client can recover from [their] attorney.”
Goffney v. Rabson, 56 S.W.3d 186, 190 (Tex. App.—Houston [14th Dist.] 2001, pet. denied) (citing Kahlig v.
Boyd, 980 S.W.2d 685, 688 (Tex. App.—San Antonio 1998, pet. denied)). “When the facts of a case support
claims against a lawyer for something other than professional negligence,” the claims may be allowed. Murphy
v. Gruber, 241 S.W.3d 689, 695 (Tex. App.––Dallas 2007, pet. denied) (citing Latham v. Castillo, 972 S.W.2d
66, 68, 71 (Tex. 1998) (allowing pursuit of Deceptive Trade Practices Act (DTPA) cause of action for attorney’
s allegedly unconscionable action in representing he was actively prosecuting client medical malpractice claim
when he was not)). But see Brescia v. Slack & Davis, L.L.P., No. 03-08-00042-CV, 2010 WL 4670322, at *7
(Tex. App.—Austin Nov. 19, 2010, pet. denied) (mem. op.) (attorneys may not be sued under DTPA unless
misrepresentation cannot be characterized as advice, judgment, or opinion) (citing Tex. Bus. & Com. Code
Ann. § 17.49(c)(1) (West Supp. 2011)).
“Texas law, however, does not permit a plaintiff to divide or fracture her legal malpractice claims into additional
causes of action.” Goffney, 56 S.W.3d at 190 (citing Greathouse v. McConnell, 982 S.W.2d 165, 172 (Tex.
App.—Houston [1st Dist.] 1998, pet. denied); Kahlig v. Boyd, 980 S.W.2d 685, 688–91 (Tex. App.—San
Antonio 1998, pet. denied); Smith v. Heard, 980 S.W.2d 693, 697 (Tex. App.—San Antonio 1998, pet. denied);
Rodriguez v. Klein, 960 S.W.2d 179, 184 (Tex. App.—Corpus Christi 1997, no pet.); Am. Med. Elecs., Inc. v.
Korn, 819 S.W.2d 573, 576 (Tex. App.—Dallas 1991, writ denied); Judwin Props., Inc. v. Griggs & Harrison,
911 S.W.2d 498, 506 (Tex. App.—Houston [1st Dist.] 1995, no writ); Bray v. Jordan, 796 S.W.2d 296, 298
(Tex. App.—El Paso 1990, no writ)). Therefore, in general, courts do not allow a case arising out of an
attorney’s alleged bad legal advice or improper representation to be split out into separate claims for
negligence, breach of contract, or fraud, because the “real issue remains one of whether the professional
exercised that degree of care, skill, and diligence that professionals of ordinary skill and knowledge commonly
possess and exercise.” Kimleco Petroleum, Inc. v. Morrison & Shelton, 91 S.W.3d 921, 924 (Tex. App.––Fort
Worth 2003, pet. denied) (citing Averitt v. PriceWaterhouseCoopers L.L.P., 89 S.W.3d 330, 333 (Tex. App.—
Fort Worth 2002, no pet.); Sledge v. Alsup, 759 S.W.2d 1, 2 (Tex. App.—El Paso 1988, no writ) (“Nothing is to
be gained by fracturing a cause of action arising out of bad legal advice or improper representation into claims
for negligence, breach of contract, fraud or some other name. If a lawyer’s error or mistake is actionable, it
should give rise to a cause of action for legal malpractice with one set of issues which inquire if the conduct or
omission occurred, if that conduct or omission was malpractice and if so, subsequent issues on causation and
CHARACTERIZATION OF CLAIM ISSUES
Greathouse v. McConnell, 982 S.W.2d 165, 172 (Tex. App.—Houston [1st Dist.] 1998, pet. denied) (holding
claims of breach of fiduciary duty, breach of duty of good faith and fair dealing, fraud, DTPA violations, breach
of contract, and breach of express and implied warranties amounted to nothing more than allegations of legal
Only those claims relating to attorney’s fees fall outside the ambit of legal malpractice. See Jampole v.
Matthews, 857 S.W.2d 57, 62 (Tex. App.—Houston [1st Dist.] 1993, writ denied) (distinguishing between an
action for negligent legal practice and one for fraud allegedly committed by an attorney relating to the
establishing and charging of fees for services).
Legal Malpractice Cases Decided by the Texas Supreme Court
Smith v. O'Donnell, No. 07-0697 (Tex. Jun. 26, 2009)(O'Neill)(PROBATE LAW: legal malpractice suit by
executor of estate against decedent's attorney, non-estate planning context, gross negligence, malice
PAUL H. SMITH, ET AL. v. THOMAS O'DONNELL, EXECUTOR OF THE ESTATE OF CORWIN DENNEY; from
Bexar County; 4th district (04-04-00108-CV, 234 SW3d 135, 07-25-07) 2 petitions
The Court affirms the court of appeals' judgment.
Justice O'Neill delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Brister, Justice
Medina, and Justice Johnson joined. [pdf - 11 pgs]
Justice Willett delivered a dissenting opinion, in which Justice Wainwright joined. [pdf]
(Justice Hecht and Justice Green not sitting)
Court of Appeals Cases involving Legal Malpractice Claims in which the
Supreme Court Denied Review
R.W. ROGERS, SR. v. LAYNE HARWELL AND NELDA HARRIS; from Tarrant County; 2nd district (02-08-
00376-CV, ___ SW3d ___, 05-28-09, pet denied Oct 2009) (prisoner's malpractice suit against criminal
defense attorney properly dismissed)
MARK SWANK AND JAMES J. MCCOY, JR., INDIVIDUALLY AND IN THEIR DERIVATIVE CAPACITY ON
BEHALF OF APPLIED MARINE PROPULSION SERVICES, INC. v. LLOYD R. CUNNINGHAM, MARTI L.
BATSON, CUNNINGHAM & ASSOCIATES, P.C., KEVIN J. MCEVILY, RICHARD L. FLOWERS, JR., MCEVILY &
FLOWERS, JOHN L. VERNER, AUBREY CALVIN, THE CALVIN LAW FIRM, MICHAEL MALONE AND BATTLE
FOWLER, L.L.P.; from Harris County; 11th district (11‑06‑00172‑CV, 258 SW3d 647, 03-27-08)(legal
malpractice, breaches of fiduciary duties, conspiracy, conversion, and fraud)
For the reasons set forth above, the trial court properly granted summary judgment to appellees on the
following grounds: (1) that Swank and McCoy lack standing to assert their claims; (2) that Swank's and
McCoy's causation and damages theories are fatally speculative; and (3) that Swank and McCoy are not
entitled to fee disgorgement. Because summary judgment was proper on these grounds, we need not
address the merits of the other summary judgment grounds advanced by appellees. We overrule Swank's
and McCoy's appellate issues.
To prevail on a legal malpractice claim, a plaintiff must show that “(1) the attorney owed the plaintiff a duty, (2)
the attorney breached that duty, (3) the breach proximately caused the plaintiff’s injuries, and (4) damages
occurred.” Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113, 117 (Tex. 2004); Greathouse v. McConnell,
982 S.W.2d 165, 172 (Tex. App.—Houston [1st Dist.] 1998, pet. denied). If a legal malpractice case arises
from prior litigation, a plaintiff must prove that, but for the attorney’s breach of his duty, the plaintiff would have
prevailed in the underlying case. Greathouse, 982 S.W.2d at 172. Cases often refer to this causation aspect
of the plaintiff’s burden as the “suit-within-a-suit” requirement. See id. at 173. In general, one proves causation
in a legal malpractice suit by expert testimony. See Alexander, 146 S.W.3d at 119–20.
The determination of proximate cause is usually a question of fact. See El Chico Corp. v. Poole, 732 S.W.2d
306, 313–14 (Tex. 1987). This is true in legal malpractice actions as well. In cases of appellate legal
malpractice, however, the determination of causation requires determining whether the appeal in the
underlying action would have been successful. Id. The plaintiff must show that but for the attorney’s
negligence the client would have prevailed on appeal. See Jackson v. Urban, Coolidge, Pennington & Scott,
516 S.W.2d 948, 949 (Tex. Civ. App.—Houston [1st Dist.] 1974, writ ref’d n.r.e.). The rationale for requiring
this determination is that, if the appeal would not have succeeded and the trial court judgment would have
been affirmed, the attorney’s negligence could not have caused the plaintiff any damage. Id. On the other
hand, if the appeal would have succeeded in reversing the trial court’s judgment and obtaining a more
favorable result, then the plaintiff sustained damage because of the attorney’s negligence. Millhouse v.
Wiesenthal, 775 S.W.2d 626, 627 (Tex. 1989). In cases involving appellate legal malpractice, the question of
whether an appeal would have been successful depends on an analysis of the law and the procedural rules.
As the Millhouse court noted, because this requires a review of the trial record and the briefs in order to
determine whether the trial court committed reversible error, “a judge is clearly in a better position” to do this
than is a jury. Id. at 628. Therefore, where the issue of causation hinges on the possible outcome of an
appeal, the question of causation is to be resolved by the court as a question of law. Id.; Klein v. Reynolds,
Cunningham, Peterson & Cordell, 923 S.W.2d 45, 47 (Tex. App.—Houston [1st Dist.] 1995, no writ).
REBECCA DUNN GRIDER v. MIKE O'BRIEN, P.C., O'QUINN & LAMINACK, AND ITS SUCCESSORS IN
INTEREST, THE O'QUINN FIRM, JOHN M. O'QUINN, AND KAISER & MAY, L.L.P.; from Harris County; 1st district
(01-07-00006-CV, ___ SW3d ___, 05-08-08)(legal malpractice suit stemming from medical malpractice suit)
Grider contends that the Corpus Christi Court of Appeals’ opinion shows what the outcome of the appeal at
the intermediate level would have been—reverse and render in part and remand in part. The law firms argue,
however, that, because the Corpus Christi Court of Appeals lacked jurisdiction to hear the appeal, its opinion
is void and “should be regarded as if it never existed.” We agree with the law firms. See Cleveland v. Ward,
285 S.W. 1063, 1071 (Tex. 1926) (judgment that is later reversed by higher court is null and void); Hudson v.
Winn, 859 S.W.2d 504, 506 (Tex. App.—Houston [1st Dist.] 1993, writ denied) (when court lacks jurisdiction,
any action taken by court is void and should be regarded as if it never existed). The law firms further contend
that the trial court in the appellate legal malpractice case was required to review the entire record in the
underlying case “in order broadly to determine whether the trial court [in the medical malpractice case]
committed reversible error.” They assert that the trial court in the appellate legal malpractice case can, as the
“sole and final arbiter of all appellate issues, decide the issue of causation as a matter of law.” Again, we
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