Texas Legal Malpractice Explained
Legal Malpractice A Texas Perspective
With the diversity of practice areas, and industry growth, being a lawyer in Texas can be an incredibly rewarding career. The diversity of these areas also increases the risk of professional liability, which can, in turn, lead to increased claims against these lawyers. So what exactly is legal malpractice? Simply put, legal malpractice is a breach of contract that occurs when an attorney doesn’t perform competently in accordance with their legal duties. When this breach of contract occurs, and damages follow, the incorrectly advised client has a choice to pursue under the contract or for tort damages.
In Texas the standard used to determine whether legal malpractice has occurred is simple: did the lawyer act as a prudent lawyer would with the benefit of hindsight. This standard is a result of a series of cases, beginning with Myers v. Condos, 271 S.W.2d 319, 322 (Tex. Civ. App. – Austin 1954, writ ref’d n.r.e . ) which established the prudent lawyers test. Shortly after this, the Texas Supreme Court adopted this test in Goffney v. San Antonio, 862 S.W.2d 535, 539 (Tex. 1993). Two other key opinions are Keck, Mahin & Cate v. Nat’l Union Fire Ins. Co., 754 S.W.2d 782 (Tex. 1988) and Sims v. Vaquier, 701 S.W.2d 250 (Tex. App. – San Antonio 1985, writ ref’d n.r.e.) The general approach for determining legal malpractice in Texas is summarized well in Salinas v. E.T. Daw, P.C., 940 S.W.2d 714, 717 (Tex. App. – San Antonio 1997, writ denied).
Although it seems incredibly simple, this test is incredibly fact sensitive. In other words, the prudent lawyer standard sometimes results in inconsistent results. In some cases, the plaintiff must show that a reasonable and prudent attorney would have handled the matter differently than the defendant, while other times the standard requires a showing that no reasonable and prudent attorney would have handled the matter in the same way that the defendant did.
Importance of a Malpractice-Specialized Attorney
Defending your rights when you have been harmed by poor representation by a lawyer is challenging under the best of circumstances. It is very important that you hire a specialist, who just does legal malpractice, to assist you in this matter. There are so many pitfalls and dead ends that you need someone who knows in advance what they are up against. For example, if you believe that you have not been represented properly by your attorney, you will want to file what is referred to as a legal malpractice lawsuit. When you file a legal malpractice lawsuit, you must do so within a certain amount of time, or else the court will dismiss your case. The state of limitations in Texas is two years, so you have two years from the time of harm to file your case or you will lose your right to sue for those damages. You need a specialist who knows the exact dates to look at when deciding if you have met your deadline or not. A specialist will also be aware of any possible exceptions that could prolong your deadline, such as fraudulent concealment or fraudulent concealment. Without the help of a specialized legal malpractice lawyer, you could easily lose your legal malpractice case before you even begin, simply because you did not file on time.
You will also need to prove that your current lawyer deviated from the rules and regulations of the bar association. Your legal malpractice attorney will understand the rules and be able to prove to you if they were not obeyed. A legal malpractice specialist will also be completely knowledgeable in the appellate process, should your situation end up there. They will use their knowledge and expertise to help you make sure that your case is filed properly before the Texas Supreme Court.
Essential Attributes of Malpractice Lawyers
Rather than rehash the obvious of what to look for in a Texas legal malpractice lawyer, I would like to look at the key qualities and skills to look for:
Insight, ability to zero in on the problem and provide questions to answer: In particular, I find legal malpractice defenses to be quite predictable. It is only the subtle and not altogether frequent ones that surprise me. That is borne of experience and insight.
Listening: I cannot stress enough the value of listening, of actually hearing your client’s story from beginning to end. It serves many purposes; first and foremost you know exactly what went wrong (instead of missing the knot in legal analysis) and you also learn just how long it may have tormented your client to arrive at filing the case.
Communication: It seems like a no-brainer, but with lawyers I have found effective use of communication to be between email and voice mail. Voice mail after hours is one thing, but email with short responses when they appear to have lots of time sets off warning bells.
Bravery: Whether due to neurological hardening (or worse), or inability to feel, some of the worst lawyers are absolutely fearless at using litigation as a weapon against their own former clients. In court you will face bombing runs (heavy artillery), starting with motions to dismiss, motions for summary judgment, and then the shotgun appellate process, all of which can be mind-numbingly expensive.
Resources: Legal malpractice lawyers are not able to fully handle all the ups and downs of a case without resources. Personal funds will only take you so far. Finding a financial partner with a deep understanding of risk to value is critical to being able to afford justice.
Actions to Consider If You Think You Have a Case
A client who suspects legal malpractice should take action immediately. Before getting started on a route that may lead into litigation, obtaining documents and some type of analysis of the error is critical. 1) Get and look at the file, 2) Ask the lawyer if he committed the error, 3) Ask the lawyer why was the decision made to do it that way, and 4) Ask for the lawyer’s ideas and thoughts on how to best fix it.
Legal malpractice will not be analyzed unless there is damage as a result of the error, and the clock in Texas runs quickly. The statute of limitations in most legal malpractice cases is two years, but there is often room for extending that period, especially if fraud or concealment by the attorney is involved. But Texas has a tolling provision that only allows for a one time extension of grace, and this shortcut does not leave further room for appeal. The two year period is essentially correct.
If you see signs that the lawyer is having difficulty running your case, mistakes are being made, or you are getting less attentive service – these are all signs that things are going wrong. If your final bill contains "write-offs" or "fee adjustments" it is a huge signal that something is amiss.
Key Inquiries for Prospective Counsel
Clients or prospective clients should ask a few questions when interviewing potential Texas legal malpractice lawyers. Experience-while you may not need the lawyer to have handled a legal malpractice case, since most legal malpractice lawyers only have a few at any given time, you want one knowledgeable in the field of law in which the error arose. (This is not as important in a federal tax controversy area). Firm size-many people will say that small firms are more responsive than larger firms. While this is a generalization, it is a valid one for many clients. On the other hand, some find the service at a large firm to be more than adequate. An example for small firms, is that often a partner can make the decision instead of asking an approval from a partner. For larger firms, the bosses are already on top of things, and can do as they please. In the end, the sheer number of big firm lawyers makes small errors more common, as compared to mistakes of omission or oversight on the small firm side. You must evaluate what it best for you depending on your experience. Fees—is the fee balanced against the expected amount of damages. Obviously damages form the basis for any fee. Fees, like costs, can cut into the total potential recovery. Too many times, the fee negotiation becomes centered around the dollars, but it should include the hours of work. For example , at our firm we often take on legal work at a contingent fee because we have done hundreds or thousands of them. We can slip the client in between other work. In essence, we have learned not to underestimate the value in time because we have seen hundreds or thousands of cases just like it. On the other hand, it is very difficult to place a value on a legal malpractice case, given the contingent nature of it—it is like computing interest in a checking account when it pays nothing. The fee should be discussed in two parts-the hourly rate and the expected hours. Do not be fooled by lawyers who say that they will work on a case when you have the time. Lawyers are busy. When the time comes that you need to work on the case-to write the papers, gather the witnesses or perform the research, the lawyer is out playing golf or doing research on the net, knowing that your claim for money is slipping away. You need to be ready to move. Be sure that the lawyer you are interviewing sees you as part of the team. It is virtually impossible for the lawyer to handle the entire case without you. We have seen sure losers morph into winners with some hard work on the client’s part. Make sure that the lawyers you interview have the time and ability to focus on your matter. That focus will be the difference between winning and losing, many times. Focus is an essential element of winning legal cases, and it starts with you.
Legal Malpractice Litigation Steps
Once you’ve decided that you have a potential case for legal malpractice or for an attempt to vacate a judgment, the first thing we do is file suit. In Texas legal malpractice cases are filed in state district or federal court, depending upon the parties and nature of the underlying case. In the complaint we name the attorney who handled the case and generally the law firm as well. (for a discussion of underling case review, see here) As expected, the attorney will file an answer and raise available affirmative defenses as well as negligence. The lawyer is entitled to conduct discovery as well, and we usually schedule depositions of the parties and attorneys.
If the attorney handled the underlying matter as a solo practitioner, they will often not engage in discovery or have a trial. If the case was highly contested, then they will certainly engage in discovery. Generally, all legal malpractice cases end up being mediated at least once prior to trial. Mediation is a required step towards resolution of the case and if successful it saves both sides the time, expense and risk of private litigation. If there is no settlement, legal malpractice cases tend to go to court as long as there was some movement in discovery.
Ways Legal Malpractice Attorneys Bill for Their Work
Commonly, legal malpractice lawyers will charge on a contingent fee basis. A "contingency fee" agreement is defined by Tex. R. Civ. P. 1.04(d) as an arrangement in which the lawyer’s fee for services is either whole or partial contingent of the success of the case. Essentially, if the lawyer is successful in the case, a percentage of the recovery is taken as fee. Although these arrangements have become standard in recent years, they are not without exception. For most types of actions outside of person injury, such agreements must be signed by the client before the commencement of any work. Tex. R. Civ. P. 1.04(f) requiring that "a contingent fee agreement expressly state the method of determining the fee . . . [and] be signed by the client" (emphasis added). One exception to obtaining a "signature" may include cases where the client applies for a lines of credit to pay for the lawyer’s services. Tex. R. Civ. P. 1.04(c).
A common – but not so standardized – fee arrangement may include hourly rates , a "retainer" agreement, or both. A "retainer" is a deposit or "advance payment" given to the lawyer to cover attorney fees. Generally speaking, any money remaining in the advance retainer at the conclusion of the case would be returned to the client. Tex. R. Civ. P. 1.04(d)(2). On an hourly fee "plus expenses", the lawyer will bill out the time spent on the case. However, unlike other contracts, there is no implicit covenant to use "reasonable care" in the representation. Davis v. Onstott, 846 S.W. 2d 832 (Tex. App, 1993) (finding that an attorney-client relationship does not exist based solely on a retainer agreement).