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Affirmed in Part and Reversed and = Remanded in Part=20 and Majority and Concurring and Dissenting Opinions filed June 24, = 2008.

 

 

In The

 

Fourteenth=20 Court of Appeals

____________

 

NO. 14-06-00848-CV

____________

 

LENIETA WYLENE=20 TROUSDALE,=20 Appellant

 

V.

 

ANNETTE M. HENRY, R. = CHRISTOPHER=20 BELL, AND BELL & HENRY, L.L.P., Appellees

 

 

On Appeal from the 129th = District=20 Court

Harris County, Texas

Trial Court Cause No. 2005-81941

 

 

C O N C U=20 R R I N G    A N D    D I S S E N T = I N=20 G    O P I N I O N

I concur in the=20 majority=3Ds holding that = Lenieta=20 Trousdale=3Ds legal malpractice = claim is=20 time-barred; however, I respectfully dissent from the = majority=3Ds conclusion that=20 Trousdale=3Ds claim for breach of = fiduciary=20 duty is separate and independent from her legal malpractice = claim. =20 Applying the parties=3D arguments to the = record before=20 us, I would conclude that Trousdale=3Ds claim of legal = malpractice=20 encompasses her claim of breach of fiduciary duty.  Although = none of=20 the considerations discussed below is individually dispositive, = they=20 collectively demonstrate that the gist of Trousdale=3Ds complaint is her = contention=20 that she lost her underlying claims through appellees=3D professional = negligence. =20 See Deutsch v. Hoover, Bax & Slovacek, L.L.P., 97 = S.W.3d 179,=20 189 (Tex. App.CHouston [14th Dist.] = 2002, no=20 pet.).

I. =20 Analysis

A.       =20 Claimant=3Ds Characterization of = AMisrepresentations@ Not = Dispositive

A claim against an = attorney for=20 breach of fiduciary duty Arequires allegations = of=20 self-dealing, deception, or misrepresentations that go beyond the = mere=20 negligence allegations in a malpractice action.@  McMahan v.=20 Greenwood, 108 S.W.3d 467, 495 (Tex. App.CHouston [14th Dist.] = 2003, pet.=20 denied) (citing Goffney v. Rabson, 56 S.W.3d 186, = 193B94 (Tex. = App.CHouston [14th Dist.] = 2001, pet.=20 denied)).  On the other hand, a client cannot necessarily = sustain a=20 separate cause of action for breach of fiduciary duty based on=20 misrepresentations or deception simply by characterizing the = conduct as=20 such a breach.  Greathouse v. McConnell, 982 S.W.2d = 165, 172=20 (Tex. App.CHouston [1st Dist.] = 1998, pet.=20 denied).  Labels used by the parties are not = determinative. =20 Goffney, 56 S.W.3d at 192.  Instead, we must examine = the=20 substance of the claims and determine if the allegations = Ago beyond@ the alleged = professional=20 negligence.  McMahan, 108 S.W.3d at = 495.

A claim of legal = malpractice=20 may be described as a claim for professional negligence. Golden = v.=20 McNeal, 78 S.W.3d 488, 492 (Tex. App.CHouston [14th Dist.] = 2002, pet.=20 denied).  Negligence consists of a breach of duty owed to the = claimant that proximately causes the claimant damages.  = Kroger Co.=20 v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006) (per curiam).  = Similarly, to prevail on a legal malpractice claim, a plaintiff = must show=20 Athat (1) the = attorney owed=20 the plaintiff a duty, (2) the attorney breached that duty,=20 (3) the breach proximately caused the plaintiff=3Ds injuries, and=20 (4) damages occurred.@  Alexander = v. Turtur=20 & Assocs., Inc., 146 S.W.3d 113, 117 (Tex. = 2004).  But=20 because = an=20 attorney is a fiduciary as a matter of law, the professional = negligence of=20 an attorney is often measured against the duties the attorney owes = to the=20 client as a fiduciary.  Murphy v. Gruber, 241 S.W.3d = 689, 696=20 (Tex. App.CDallas 2007, pet. = denied).[1] =20 Thus, it is sometimes unclear whether an attorney=3Ds breach of duty is = more=20 appropriately characterized as malpractice or breach of fiduciary=20 duty.  See Deutsch, 97 S.W.3d at 189 (noting that = Athere are confusing = statements=20 in dicta in some of the cases.@).  To make that = determination, we may consider whether the claim of breach of = fiduciary=20 duty Agoes = beyond@ the malpractice = claim, or=20 whether it instead relies on the same set of facts and seeks the = same=20 remedies.  McMahan, 108 S.W.3d at 495.

B.       =20 No Reliance on Distinct Facts

In determining = whether a claim=20 is improperly fractured, we may examine the facts asserted in the=20 client=3Ds pleadings to = determine if=20 they allege a cause of action distinct from the = attorney=3Ds alleged = negligence. =20 See Murphy, 241 S.W.3d at 698 (examining the acts or = omissions=20 alleged in the petition to determine the substance of the = complaint);=20 Haas v. George, 71 S.W.3d 904, 910 (Tex. App.CTexarkana 2002, no = pet.)=20 (holding that motion for summary judgment on legal malpractice = claims=20 encompassed breach-of-fiduciary-duty claims arising from the same = set of=20 facts); Cuyler v. Minns, 60 S.W.3d 209, 216 (Tex. = App.CHouston [14th Dist.] = 2001, pet.=20 denied) (reasoning that summary judgment on = breach-of-fiduciary-duty claim=20 is proper if summary judgment on malpractice claim is proper, and = both=20 arise from same set of facts and circumstances); Klein v. = Reynolds,=20 Cunningham, Peterson & Cordell, 923 S.W.2d 45, 49 (Tex.=20 App.CHouston [1st Dist.] = 1995, no=20 pet.) (op. on reh=3Dg) (concluding that = alternative=20 causes of action in the appellant=3Ds petition = Aare all essentially=20 >means to an = end=3D to achieve one = complaint of=20 legal malpractice.@ (quoting LTV = Energy Prods.=20 Co. v. Chaparral Inspection Co., 827 S.W.2d 593, = 594B95 (Tex. = App.CHouston [1st Dist.] = 1992, writ=20 denied))).  In Cuyler, for example, two attorneys = tried their=20 client=3Ds automobile accident = claim to=20 a jury, which awarded $5,000 in damages.  Cuyler, 60 = S.W.3d at=20 212.  The client sued the defendant attorney for breach of = fiduciary=20 duty, breach of contract, negligence, DTPA violations, negligence = per se,=20 and violations of the Texas Disciplinary Rules of Professional=20 Conduct.  Id.  We concluded that = Cuyler=3Ds claims for breach = of contract=20 and breach of fiduciary duty represented an impermissible = fracturing of=20 her legal malpractice claim.  Id. at 216 (AIf a = lawyer=3Ds error or mistake is = actionable, it should give rise to a cause of action for legal = malpractice=20 with one set of issues which inquire if the conduct or omission = occurred,=20 if that conduct or omission was malpractice and if so, subsequent = issues=20 on causation and damages.@ (quoting Sledge = v.=20 Alsup, 759 S.W.2d 1, 2 (Tex. App.CEl Paso 1988, no = writ))). =20

Here, the facts = pleaded in=20 support of Trousdale=3Ds = breach-of-fiduciary-duty=20 claim are the same as those asserted in her legal malpractice = claim. =20 Although Trousdale argues that appellees misrepresented that the = files in=20 her underlying case were sealed, this assertion is pleaded in = connection=20 withCand appears = inseparable=20 fromCher allegations that = appellees=20 (1) failed to inform her that her cases were dismissed, and=20 (2) failed to return her files.  Such allegations are = more=20 appropriately characterized as claims of professional = negligence. =20 See, e.g.,  Archer v. Med. Protective Co. of Fort = Wayne,=20 Ind., 197 S.W.3d 422, 427B28 (Tex. = App.CAmarillo 2006, pet. = denied)=20 (failure to communicate with client involves malpractice rather = than=20 breach of fiduciary duty).[2] =20 Although the allegation of the same facts for legal malpractice = and breach=20 of fiduciary duty is not dispositive of the fracturing issue, such = repackaging of claims supports the conclusion that the claims are=20 essentially one claim in different guises.[3]  And=20 significantly (as discussed infra), Trousdale relied on the = same=20 allegations, albeit unsuccessfully, in her attempts to toll = limitations on=20 her malpractice claims. 

C.       =20 No Harm or Benefit from Alleged Breach

The elements of a = cause of=20 action for breach of fiduciary duty are:

1.        =20 A fiduciary relationship between the plaintiff and defendant that = was=20

2.        =20 breached by the defendant, resulting in

a.        =20 injury to the plaintiff, or

b.        =20 benefit to the defendant.[4]

Here, there are no = injuries to=20 the client or benefit to the attorneys other than those = attributable to=20 the legal malpractice claim.

1.        =20 No Distinct Harm to Client

When a claim of = breach of=20 fiduciary duty is based upon injury to the client, damages caused = by the=20 attorney=3Ds professional = negligence will=20 not support the separate claim.  See Deutsch, 97 = S.W.3d at=20 191.  In Deutsch, we concluded that the trial court = erred in=20 granting a directed verdict on the grounds that the = client=3Ds claims of breach of = fiduciary=20 duty, which were based on undisclosed conflicts of interest and = failure to=20 withdraw due to those conflicts, improperly fractured the=20 client=3Ds legal malpractice=20 claims.  Id.  Although we concluded that these = were=20 distinct claims, we affirmed part of the trial court=3Ds judgment on another = basis.  Specifically, we held that the trial court properly = granted=20 directed verdict on those particular fiduciary-duty claims because = there=20 was no evidence of damages attributable to the conduct that was = alleged to=20 constitute the breach rather than conduct that allegedly = constituted=20 professional negligence.  Id.[5] =20

Here, we must = determine whether=20 a separate claim is alleged; thus, we look to the pleadings rather = than=20 the evidence.  See Goffney, 56 S.W.3d at 194.  = Trousdale=20 initially alleged that appellees=3D negligence caused = the=20 dismissal of her underlying suits, resulting in Aactual economic = damages of at=20 least $360,000.00 from a loss of all of her personal property that = had=20 been converted and an interest in real estate which she was = entitled=20 to.@  As pleaded, = these=20 damages arose, if at all, from the professional negligence of her=20 attorneys in allowing her claims to be dismissed, not from a=20 misrepresentation that her case files were sealed.  And = Awhen an = attorney=3Ds malpractice results = in=20 financial loss, the aggrieved client is fully compensated by = recovery of=20 that loss; the client may not recover damages for mental anguish = or other=20 personal injuries.@  Belt v. = Oppenheimer,=20 Blend, Harrison & Tate, Inc., 192 S.W.3d 780, 784 (Tex. = 2006)=20 (citing Douglas v. Delp, 987 S.W.2d 879, 885 (Tex. 1999)); = see=20 also Winkle Chevy-Olds-Pontiac, Inc. v. Condon, 830 S.W.2d = 740, 746=20 (Tex. App.CCorpus Christi 1992, = writ=20 dism=3Dd) (mental anguish = damages are=20 not ordinarily awarded in conversion = actions).

Trousdale = subsequently amended=20 her petition to add the statement, APlaintiff also sues = for mental=20 anguish damages proximately caused by Defendants[=3D] breach of fiduciary = duties[,]@ and she alleged that = the=20 breach consisted of appellees=3D false statements = that her=20 files were sealed.  Trousdale further asserted that these=20 misrepresentations were made in an attempt to conceal=20 appellees=3D negligence.  = But as=20 discussed infra, the remedy for such concealment of = professional=20 negligence is to delay the accrual of the malpractice cause of = action=20 until the client knows or in the exercise of reasonable diligence = should=20 have known of the malpractice.  For the reasons discussed by = the=20 majority, I agree that, despite Trousdale=3Ds allegations that = appellees=20 attempted to conceal their negligence, the malpractice cause of = action=20 accrued more than two years before suit was filed.

2.        =20 No Distinct Benefit to Appellees

A person who violates = an=20 agreement to perform compensable services in a fiduciary = relationship=20 breaches the agreement on which the right to compensation is = based. =20 Burrow, 997 S.W.2d at 237.  But although it is = unnecessary for=20 a client to sustain actual damages to maintain an action for = breach of=20 fiduciary duty, Trousdale also did not seek the equitable remedy = available=20 for such a breachCi.e., the return of = the fees by=20 which appellees benefitted.  See id. at 232 = (A[A]n attorney who = breaches his=20 fiduciary duty to his client may be required to forfeit all or = part of his=20 fee, irrespective of whether the breach caused the client actual=20 damages.@); cf. Murphy, = 241=20 S.W.3d at 698 (holding that clients=3D allegations = constituted claims=20 of legal malpractice, but the remedies soughtCfee forfeiture and = constructive=20 trustCare = breach-of-fiduciary-duty=20 remedies).  Further, she did not allege matters necessary to = support=20 such relief.  See Burrow, 997 S.W.2d 229 at 241 (full = or=20 partial fee forfeiture must be based on Aclear and serious = violation of=20 duty@).[6] =

Although Trousdale = did not=20 allege a distinct injury or benefit to sustain an independent = claim for=20 breach of fiduciary duty, the face of her pleadings demonstrates = another=20 purpose for her allegations: that of overcoming the time-bar to = her=20 malpractice claims. 

D.       =20 Equitable Estoppel and the Discovery = Rule

Although it is not a = separate=20 cause of action, equitable estoppel may be asserted as a defensive = plea to=20 bar a defendant from raising the defense of limitations.  = Joe v.=20 Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156 n.1 (Tex.=20 2004).  Similarly, the Adiscovery = rule@ can delay a claim = for legal=20 malpractice from accruing until the client knows or in the = exercise of=20 reasonable diligence should have known of the attorney=3Ds wrongful act.  = Hughes=20 v. Mahaney & Higgins, 821 S.W.2d 154, 156 (Tex. = 1991). =20

Here, the facts that = Trousdale=20 characterizes as a claim for breach of fiduciary duty are actually = asserted as a defense to the limitations bar applicable to her = malpractice=20 claims.  For example, Trousdale pleaded the following in = connection=20 with her professional-negligence claim:

Defendants = fraudulently=20 concealed their negligence in failing to appear at the trial = settings=20 in September-October 2002 from Plaintiff.  Defendants knew = that they=20 had committed negligence in letting Plaintiff[=3D]s cases be dismissed = based=20 upon their non[-]appearance.  Defendants failed to disclose = the=20 dismissal to Plaintiff and used deception to conceal their = negligence=20 by Defendant Henry telling Plaintiff when she inquired about = when the=20 trial would be held that a hearing had been Amissed@ and at that time = could not be=20 rescheduled because the trial court had sealed the file. =20 Plaintiff relied upon the deceptive misrepresentations of = Defendant=20 Henry and was not able to learn the true facts of dismissal until = she=20 obtained the file in September 2005.  Thus, Defendants are = equitably=20 estopped by their deceptive representations to assert the statute = of=20 limitations to Plaintiff=3Ds negligence claims = until at=20 least September 2005.            =

(Emphasis = added).  She=20 then asserted that her attorneys breached their fiduciary duties = as=20 follows:

Defendants failed to disclose the = dismissal of=20 Plaintiff[=3D]s cases to her, immediately after their = dismissal=20 in September-October 2002, while continuing to demand and accept = payment=20 for their services and misrepresenting to Plaintiff that her cases = could=20 not be rescheduled for hearing because the files were = sealed.

Defendants = intentionally=20 refused to return Plaintiff=3Ds files to her, while = continuing to act as her attorneys, until September 2005, in = order to=20 conceal from Plaintiff that her cases had been dismissed and were=20 time[-]barred.

(Emphasis = added).  Thus,=20 Trousdale=3Ds pleadings reveal = that her=20 legal malpractice claims are time-barred unless there is a basis = on which=20 to avoid limitations. 

Although she = characterizes=20 appellees=3D alleged deception as = a breach=20 of fiduciary duty, I would describe these allegations as a defense = to=20 limitations.  The reasons for treating such allegations as an = invocation of the discovery rule rather than a separate cause of = action=20 are exemplified in the following discussion in Willis v.=20 Maverick:

The special = relationship=20 between an attorney and client further justifies imposition of the = discovery rule.  A fiduciary relationship exists between = attorney and=20 client.  As a fiduciary, an attorney is obligated to render a = full=20 and fair disclosure of facts material to the client=3Ds = representation.  The=20 client must feel free to rely on his attorney=3Ds advice.  Facts = which=20 might ordinarily require investigation likely may not excite = suspicion=20 where a fiduciary relationship is involved.  Further, breach = of the=20 duty to disclose is tantamount to concealment.  Thus, the = California=20 Supreme Court writes: A[p]ostponement=20 of accrual of the cause of action until the client discovers, = or should=20 discover, the material facts in issue vindicates the fiduciary = duty of=20 full disclosure; it prevents the fiduciary from obtaining = immunity for=20 an initial breach of duty by a subsequent breach of the obligation = of=20 disclosure.@

760 S.W.2d 642, 645 = (Tex. 1988)=20 (emphasis added, citations omitted).  In sum, I would = conclude that=20 the factual assertions at issue are not distinct from and do not=20 Ago beyond@ = Trousdale=3Ds malpractice = claim. =20 See McMahan, 108 S.W.3d at 495.  To the contrary, = these=20 allegations are the underpinnings essential to maintain a = malpractice=20 claim at this late date; thus, treatment of these allegations as a = separate breach-of-fiduciary-duty claim impermissibly fractures=20 Trousdale=3Ds legal malpractice=20 claim.  I therefore would hold that all of = Trousdale=3Ds claims are = time-barred, and I=20 would affirm the summary judgment in its entirety.

II. =20 McMahan Distinguished

Although I agree with = the=20 majority that McMahan v. Greenwood offers some guidance in=20 analyzing the issues presented in this case, my interpretation of = that=20 case differs from that expressed by the majority.[7]  The=20 majority describes McMahan as a suit brought by a client, = McMahan,=20 against his former attorney, Henderson.  See Majority=20 Opinion, ante at 12B13.  But in=20 McMahan, the existence of an attorney-client relationship = was an=20 unresolved question of fact.  McMahan, 108 S.W.3d at = 492, n.10=20 (observing that McMahan raised alternative claims based on the = existence=20 or the absence of an attorney-client relationship, but concluding = that the=20 reviewing court Aneed not define the = precise=20 parameters of McMahan=3Ds lawsuit@); id. at 493 = (stating=20 that McMahan responded to motions for summary judgment that denied = the=20 existence of an attorney-client relationship Awith more than a = scintilla of=20 evidence regarding the existence of an attorney-client=20 relationship@).  Given the = existence of=20 this question of material fact, we could not and did not express = an=20 opinion as to whether McMahan=3Ds various causes of = action=20 impermissibly fractured a claim of professional negligence. =

The majority, = however, reads=20 McMahan to imply that a client is likely to have a cause of = action=20 for breach of fiduciary duty that is distinct from a claim for = legal=20 malpractice if the client alleges that his attorney has made = uncorrected=20 misrepresentations.  See Majority Opinion, ante = at=20 12B13.  I do not = read=20 McMahan to suggest an opinion in that situation, which, as = the=20 majority acknowledges, was not presented in that case.=20

In particular, I = would like to=20 emphasize that our conclusion that McMahan=3Ds claims of fraud, = fraudulent=20 concealment, and fraudulent inducement survived summary judgment = was not=20 dependent on the existence of an attorney-client = relationship. =20 Id. at 493B94.  Instead, we = concluded=20 that the defendant attorney had a Aduty to disclose the = entire=20 truth and to correct any misimpressions caused by his earlier=20 statements@ = regardless of whether an = attorney-client=20 relationship existed.  Id. at 494 (discussing the = fraudulent=20 concealment claim and citing Anderson, Greenwood & Co. v.=20 Martin, 44 S.W.3d 200, 212B13 (Tex. = App.CHouston [14th Dist.] = 2001, pet.=20 denied)); id. at 495 (discussing claims of fraud and = fraudulent=20 inducement and concluding that the facts supported a duty to=20 disclose).  Our reliance on Anderson is significant, = for in=20 that case, we explained that the existence of a fiduciary = relationship is=20 but one of several possible bases for imposing a duty to = disclose. =20 Anderson, 44 S.W.3d at 212.  As relevant to this case, = we=20 expressly recognized in Anderson that one who Amakes a partial = disclosure and=20 conveys a false impression@ has a duty to = disclose=20 information to correct that false impression.  Id. at=20 213.  As Anderson illustrates, that duty is = independent of the=20 existence of a fiduciary relationship.  Id.

Regarding = McMahan=3Ds claims of negligent = misrepresentation, we explained, A[the = attorney=3Ds] arguments are = identical to=20 those he asserted against McMahan=3Ds fraud and = fraudulent=20 inducement causes of action.  For the reasons we rejected = them there,=20 we reject them here.@  = McMahan, 108=20 S.W.3d at 497.  And because the claims of fraud, fraudulent=20 inducement, fraudulent concealment, and negligent = misrepresentation=20 survived summary judgment, the evidence supporting those claims = was=20 Asome = evidence@ of an unlawful overt = act.=20  Consequently, McMahan=3Ds conspiracy claim = also=20 survived the motion for no-evidence summary judgment, because the = only=20 ground for judgment asserted in that motion was the absence of = evidence of=20 an unlawful overt act.  Id. at 497B98.

Although we also held = that=20 McMahan=3Ds claims of legal = malpractice=20 and breach of fiduciary duty survived summary judgment, our = conclusion was=20 based on evidentiary failure.  Specifically, the affidavit = supplied=20 by the summary-judgment movant was insufficient to establish his=20 entitlement to judgment as a matter of law.  See id. = at 496=20 (attorney=3Ds affidavit that he = was not=20 McMahan=3Ds attorney in 1994 = did not=20 refute McMahan=3Ds allegations and = affidavit=20 that the attorney represented him in 1989).  =

In sum, I agree with = the=20 majority that McMahan contains a brief reference to the=20 non-fracturing rule that is helpful in this case: when examining = the=20 pleadings, it is useful to compare the allegations of fact, = causation, and=20 damages asserted in connection with the breach-of-fiduciary-duty = claim and=20 determine if they Ago beyond the mere = negligence=20 allegations in a malpractice action.@  Id. at = 495;=20 Majority Opinion, ante at 13 n.3.  I respectfully = disagree,=20 however, with any implication that the allegations contained in=20 McMahan=3Ds pleadings would or = would not=20 violate the non-fracturing rule.  Because that issue was not = resolved=20 in McMahan, it provides no additional guidance to our = resolution of=20 this case.

III. =20 Conclusion

I concur in the=20 majority=3Ds conclusion that=20 Trousdale=3Ds legal malpractice = claims are=20 time-barred.  Because I also would conclude that=20 Trousdale=3Ds claim of breach of = fiduciary=20 duty is encompassed in her claim of legal malpractice, I would = hold that=20 all of her claims are time-barred.  I therefore would affirm = the=20 summary judgment in its entirety. 

 

 

 

 

/s/        Eva=20 M. Guzman

Justice

 

 

Judgment rendered = and=20 Majority and Dissenting and Concurring Opinions filed June 24,=20 2008.

 

Panel consists of = Justices=20 Yates, Fowler, and Guzman (Fowler, J., majority).

 


[1]  In Murphy, the Fifth Court = of=20 Appeals explained:

[W]ith lawyers, the standard of care in = negligence=20 claims is often defined by the characteristics of that inherent = fiduciary=20 relationship.  As a result, courts refer to the fiduciary=20 relationship that the lawyer has to the client and use fiduciary = standards=20 to define the standard of care required of lawyers.  See,=20 e.g., Two Thirty Nine Joint Venture v. Joe, 60 S.W.3d = 896, 905=20 (Tex. App.CDallas 2001), rev=3Dd on other grounds, 145 S.W.3d 150 (Tex. 2004).  And = courts=20 most often have applied those standards to conclude that the = claims assert=20 professional negligence, not breach of fiduciary = duty.

[2]  See also Weaver v. = Wyly, No.=20 06-98-00141-CV, 1999 WL 691861, at *3 (Tex. App.CTexarkana Sept. 8, 1999, no pet.) (not = designated=20 for publication) (attorney=3Ds failure to return client=3Ds file does not extend legal malpractice = limitations period); Tennison v. Krist, No. 01-97-00039-CV, = 1998 WL=20 502557, at *3 (Tex. App.CHouston [1st Dist.] Aug. 20, 1998, pet. = denied)=20 (not designated for publication) (failure to return file asserted = as a=20 basis for malpractice claim).

[3]  Archer v. Med. Protective Co. = of Fort=20 Wayne, Ind., No. Civ.A.2:03-CV-314-C, 2004 WL 1194455, at *6 = (N.D.=20 Tex. May 28, 2004) (citing Deutsch, 97 S.W.3d at=20 190).

[4]  See Jones v. Blume, 196 = S.W.3d 440,=20 447 (Tex. App.CDallas 2006, pet. denied); see also = Burrow v.=20 Arce, 997 S.W.2d 229, 239B40 (Tex. 1999) (client need not prove = actual=20 damages in order to obtain forfeiture of an attorney=3Ds fee for the attorney=3Ds breach of fiduciary duty); Kinzbach = Tool Co.=20 v. Corbett-Wallace Corp., 138 Tex. 565, 573B74, 160 S.W.2d 509, 514 (1942) = (fiduciary must=20 account to his principal for any benefit received through breach = of=20 fiduciary duty); McMahan, 108 S.W.3d at 496 (claim of = breach of=20 fiduciary duty alleged injury to plaintiff/alleged client rather = than=20 benefit to defendant/attorney).

[5]  We further acknowledged that = damages are=20 not essential to recovery for breach of fiduciary duty. =20 Id. = at = 189=20 (citing Burrow, 997 = S.W.2d at=20 237B47 (holding that, although negligence = claim fails=20 if client suffers no damages, clients still may obtain fee = forfeiture as=20 remedy for breach of fiduciary duty, even in absence of = damages)). =20 This subject is discussed infra at 8B9.

[6]  A>A violation is clear if a reasonable = lawyer,=20 knowing the relevant facts and law reasonably accessible to the = lawyer,=20 would have known that the conduct was wrongful.=3D@  Id. (quoting Restatement (Third) of the Law = Governing=20 Lawyers ' 49 cmt. d (Proposed Final Draft = No. 1,=20 1996)).  Factors relevant in determining the seriousness of a = violation include Athe gravity and timing of the violation, = its=20 wilfulness, its effect on the value of the lawyer=3Ds work for the client, any other = threatened or=20 actual harm to the client, and the adequacy of other = remedies.@  Id. (quoting Restatement (Third) of the Law = Governing=20 Lawyers ' 49 (Proposed Final Draft No. 1,=20 1996)).  Protection of the public=3Ds interest in maintaining the integrity = of=20 attorney-client relationships is another factor to be = considered. =20 Id. at 244.

[7]  Cf. Erdman v. State, 861 = S.W.2d 890,=20 897 (Tex. Crim. App. 1993) (McCormick, P.J., dissenting) = (distinguishing a=20 case relied upon by the majority and authored by the dissenting = justice).=20

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