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CAUSE OF ACTION FOR LEGAL MALPRACTICE IN TEXAS

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, and (3) the breach proximately
caused the plaintiff's actual damages.  Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113, 117 (Tex.
2004).

ATTORNEY MALPRACTICE -
CASE LAW SNIPPETS FROM HOUSTON COURTS OF APPEALS

Elements of legal malpractice claim - but-for element for suit based on prior suit
Source: Duerr v. Brown et al (Tex.App.- Houston [14th Dist.] July 3, 2008)(Boyce)
(legal malpractice, breach of fiduciary duty, BoFD, continuance)

A legal malpractice plaintiff must prove: (1) the attorney owed the plaintiff a duty of care; (2) the attorney
breached that duty; (3) the breach proximately caused the plaintiff's injuries; and (4) damage occurred. Farah v.
Mafrige & Kormanik, P.C., 927 S.W.2d 663, 670 (Tex. App.- Houston [1st Dist.] 1996, no writ).  A legal
malpractice claim must be supported by expert testimony.  See Alexander v. Turtur & Assocs., Inc., 146 S.W.3d
113, 119-20 (Tex. 2004).  
When the asserted legal malpractice involves the results of prior litigation, the plaintiff bears the additional
burden of proving that, "but for" the attorney's breach of duty, he would have prevailed on the underlying cause
of action and would have been entitled to judgment.  See Greathouse, 982 S.W.2d at 172; Schlager v. Clements,
939 S.W.2d 183, 186-87 (Tex. App.- Houston [14th Dist.] 1996, writ denied).  This requirement is known as the  
"suit within a suit" requirement.  See Greathouse, 982 S.W.2d at 173.  
*** To establish a viable legal malpractice claim, Duerr had to establish that he would have prevailed on the
allegedly mishandled claims.  Lyon's affidavit did not establish this requirement.  Aiken, 115 S.W.3d at 29;
Greathouse, 982 S.W.2d at 172.  Therefore, Duerr's legal malpractice against Fleming would not have survived
Rule 166(a)(i) even if Lyon's affidavit had been considered.

Malpractice as negligence

A legal malpractice claim focuses on whether an attorney represented a client with the requisite level of skill,
while a breach of fiduciary duty claim encompasses whether an attorney obtained an improper benefit from the
representation.  See Aiken v. Hancock, 115 S.W.3d 26, 28 (Tex. App.- San Antonio 2003, pet. denied).  
Breach of fiduciary duty involves conduct including failure to disclose conflicts of interest; a failure to deliver
funds belonging to the client; placing personal interests ahead of a client's interests; misuse of client
confidences; taking advantage of the client' trust; engaging in self-dealing; and making material
misrepresentations.  See Goffney, 56 S.W.3d at 193.
Source: Duerr v. Brown et al (Tex.App.- Houston [14th Dist.] July 3, 2008)(Boyce)
(legal malpractice, breach of fiduciary duty, BoFD, continuance)

Malpractice v. breach of fiduciary duty

Duerr's first theory is that Brown and Fleming breached their fiduciary duty to him because they promised him a
larger recovery net of attorney's fees than he ultimately received.  Duerr alleges that the proper information was
not filed under the matrices governing additional compensation; items were filed incorrectly; improper information
was filed; and an administrative appeal from the denial of benefits was not pursued timely or to its fullest extent.  
Duerr alleged that Brown and Fleming had opportunities to correct these asserted errors, and "may have
mitigated the negligence of all Defendants" had they done so.

These are allegations that Duerr's "attorney[s] did not exercise that degree of care, skill, or diligence as
attorneys of ordinary skill and knowledge commonly possess."  See Deutsch, 97 S.W.3d at 189; see also
Murphy, 241 S.W.3d at 692-93 (giving erroneous legal opinion or advice, delaying or failing to handle a matter,
or not using ordinary care in preparing, managing, and prosecuting a case constitutes legal malpractice);
Goffney, 56 S.W.3d at 193 (allegations attorney abandoned client at trial, did not properly prepare lawsuit for
trial, and misled client into believing attorney was prepared for trial were claims for legal malpractice). Because
Duerr's first theory focuses on the quality of representation provided, it alleges legal malpractice and nothing
more.  See Greathouse, 982 S.W.2d at 172 (when the crux of complaint is failure to provide adequate legal
representation, the claim asserts legal malpractice).

Decisions from the Houston Courts of Appeals in Legal Malpractice Cases  

Duerr v. Brown et al (Tex.App.- Houston [14th Dist.] July 3, 2008)(Boyce)
(legal malpractice, breach of fiduciary duty, BoFD, claim splitting, expert testimony to prove malpractice,
failure to produce expert, continuance properly denied)
AFFIRMED: Opinion by Justice Boyce  
Before Chief Justice Hedges, Justices Hudson and Boyce
14-07-00619-CV Scott Duerr and Kimberly Duerr v. Ron Brown, Aaron Dickey, Brown & Crouppen, P.C., George
Fleming, Andres Pereira, and Fleming & Associates, L.L.P.
Appeal from 334th District Court of Harris County
Trial Court Judge: Sharon McCally

Trousdale v. Henry (Tex.App.- Houston [14th Dist.] June 24, 2008)(Fowler)
(legal malpractice, claim splitting, fractioning, applicable statute of limitations for negligence and breach of
fiduciary duty, tolling, discovery rule)
AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Fowler  Before Justices Brock
Yates, Fowler and Guzman
14-06-00848-CV Lenieta Wylene Trousdale v. Annette M. Henry, R. Christopher Bell and Bell & Henry, L.L.P.
Appeal from 129th District Court of Harris County
Trial Court Judge: Samuel Grant Dorfman  
Concurring and Dissenting Opinion by Justice Guzman (legal malpractice claims should not be splintered
into different causes of action).  

Grider v. Mike O'Brien, PC (Tex.App.- Houston [1st Dist.] May 8, 2008)(Hanks)
(legal malpractice suit stemming from medical malpractice suit)
AFFIRM TC JUDGMENT: Opinion by Justice Hanks
Before Justices Taft, Nuchia and Hanks
01-07-00006-CV Rebecca Dunn Grider v. Mike O'Brien, P.C., O'Quinn & Laminack, and its Successor in Interest,
The O'Quinn Firm, John M. O'Quinn, and Kaiser & May, L.L.P.
Appeal from 127th District Court of Harris County
Trial Court Judge: Hon. Sharolyn P. Wood\

In re Michael Medina (Tex.App.- Houston [1st Dist.] Dec. 6, 2007)(Hanks)
(IME, mental injury, legal malpractice, multiple plaintiffs)
GRANT PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Hanks
Before Justices Taft, Hanks and Higley
01-07-00747-CV In re Michael Medina, et al
Appeal from 212th District Court of Galveston County (Hon. Susan Elizabeth Criss)

McLendon v. Detoto (Tex.App.- Houston [14th Dist.] Jul. 3, 2007)(Hudson)(malpractice legal)
AFFIRMED: Opinion by Justice Hudson
Before Chief Justice Hedges, Justices Hudson and Guzman
14-06-00658-CV Robert McLendon v. Richard Gregory "Rick" Detoto
Appeal from 334th District Court of Harris County (no judge shown on docket)

Moser v. Junell (Tex.App.- Houston [1st Dist.] Feb. 1, 2007)(Bland)
(legal malpractice, limitations, equitable tolling)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Bland
Before Chief Justice Radack, Justices Alcala and Bland
01-04-00078-CV        Moser, Independent Administrator for Estate of Whitsett v. Junell, Jr. and Andrews & Kurth
L.L.P.--Appeal from 151st District Court of Harris County
Trial Court Judge: Hon. Caroline E. Baker

NOTEWORTHY LEGAL MALPRACTICE ACTIONS FILED IN HARRIS COUNTY

Wife of R. Allen Stanford sues divorce lawyers for $200 million in damages along with fee forfeitures for alleged
legal malpractice in connection with an alleged oral settlement offer of $200 million. See Original Petition in
Cause No. 2009-61538 Susan Stanford v. Nancy Rommelmann dba The Law Offices of Nancy Rommelmann,
Pavlas, Brown & York, L.L.P. (attorney malpractice).
The lawsuit was assigned to the 333rd District Court, the Hon. Tad Halbach presiding.


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