1. law, govt and politics

COMMON MISTAKES MADE BY ATTORNEYS:
HOW TO AVOID CLAIMS OF LEGAL NEGLIGENCE
AND BREACH OF FIDUCIARY DUTY
JIMMY WILLIAMSON, Houston
Williamson & Rusnak
[email protected]
713-223-3330
State Bar of Texas
18 ANNUAL ADVANCED
REAL ESTATE DRAFTING COURSE
March 8-9, 2007
Houston
TH
CHAPTER 15
TABLE OF CONTENTS
Page
INTRODUCTION
A.
B.
C.
D.
I
.
.
.
Contingency Fee Contracts Must Be In Writing . . . . . . . . . . . . . . . . . . . . . . . . .10
Referral Agreements Must Be In Writing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
.
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15
CaseLaw . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
Prohibited Transactions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
HIRE OTHER LAWYERS
A.
B.
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12
Former Clients I Substantially Related Matters . . . . . . . . . . . . . . . . . . . . . . . . . .12
Failure to Disclose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Attorney Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
SELF-DEALING
A.
B.
V
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10
CONFLICTS OF INTEREST
A.
B.
C.
IV.
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3
Failure to Communicate Can Be a Breach of Fiduciary Duty . . . . . . . . . . . . . . . . 4
Settlement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
The Reasons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
PUTITINWRITING
A.
B.
I11.
Breach of Fiduciary Duty and Legal Malpractice . . . . . . . . . . . . . . . . . . . . . . . . .1
Representations to the Opposing Side . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
Representations to Third Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.
TheStateBar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
TALKTOTHECLIENT
A.
B.
C.
I1
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1
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17
"Tommy. Share Your Toys." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
Withdrawal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
.
COMMON MISTAKES MADE BY ATTORNEYS
How to Avoid Claims of Legal Negligence
and Breach of Fiduciary Duty
INTRODUCTION
This paper will discuss violations of select Texas Disciplinary Rules of Professional Conduct
as well as conduct that could give rise to action for breach of fiduciary duty and legal malpractice.
Obviously, as a lawyer, a fiduciary, and a professional, there are a zillion ways to make mistaltes.
There are a few areas that crop up consistently.
What I have discovered as a legal malpractice attorney is that the expected mistakes are rare.
Missing a statute of limitations, failing to make aproper objection to evidence, failing to incorporate
aparagraph into acontract, failing to interpret case law correctly, etc. are the exceptions, not the rule.
Even when they do occur, it is almost always possible to avoid harm to the client.
In my experience, the mistakes that end in litigation most frequently are not usually with the
professional side of law. They are with the business side of law. Ironically, these mistakes are the
easiest to avoid. Stated differently, they are mistakes brought about not by professional failings, but
by human failings.
A.
Breach of Fiduciary Duty and Legal Malpractice
The test against which we are measured is one of a fiduciary, namely, a person who is
obligated to exhibit the utmost confidence, trust, integrity, fidelity and loyalty. Tanox, Inc. v. Akin,
Gump Strauss, Hauer & Feld, L.L.P., 105 S.W.3d 244 (Tex.App.-Hous.(l4 Dist.) 2003).
"The duties set forth in the Code of Professional Responsibility establish the minimum level
of competencerequired of attorneys for the protection of the public." Martin v. Trevino, 578 S.W.2d
763 (Tex. Civ. App.-Corpus Christi 1979, writ refd n.r.e.). If a client's complaint alleges "the
attorney did not exercise the degree of care, skill, or diligence as attorneys of ordinary skill and
lcnowledge commonly possess, then that complaint should be pursued as a negligence claim, rather
than some other claim." McMahan v. Greenwood, 108 S.W.3d at 495 (Tex.App.-Hous.(l4 Dist.)
2003, pet.denied). However, if "the client's complaint is more appropriately classified as a fraud,
DTPA, breach of fiduciary duty, or breach of contract complaint, then the client can assert a claim
other than negligence." Id. at 495-496.
"The focus of breach of fiduciary duty is whether an attorney obtained an improper benefit
from representing a client, while the focus of a legal malpractice claim is whether an attorney
adequately represented a client." Kimleco Petroleum, Inc. v. Morrison & Shelton, 91 S.W.3d 921
(Tex. App.-Fort Worth 2002, pet. denied). A claim for breach of fiduciary duty involves
"allegations of self-dealing, deception, or misrepresentations that go beyond the mere negligence
allegations in a malpractice action." McMahan v. Greenwood, 108 S.W.3d 467, 495 (Tex.
App.-Houston [14 Dist.] 2003, pet.denied). See also Burrow v. Arce, 997 S.W.2d 229 (Tex. 1999).
A breach of fiduciary duty claim can be brought independently of a negligence claim. For
any particular set of facts, however, it is usually debatable under Texas law as to whether a breach
of fiduciary claim is merely a restatement of the negligence claim, In those circumstances, asserting
the breach of fiduciary duty claiin may merely be an improper "fracturing" of the claims. "The rule
against dividing or fracturing a negligence claim prevents legal-malpractice plaintiffs from
opportunistically transforming a claim that sounds only in negligence into other claims." Deutsch
v Hoover, Bax & Slovacek, L.L.P, 97 S.W.3d 179, 189 (Tex. App.-Houston [14th Dist.] 2002, no
pet. h.). "An action for conflicts, for example, may just be an action for legal malpractice." Home
Advantage, Inc, v. Shaw, No. 07-97-0309-CV, 1998 Tex. App. WL 487042 (Tex. App.-Amarillo
August 19, 1998, no pet. h.)(unpublished opinion).
With regard to duties, you should be familiar with Burrow v. Arce. In Burrow v. Arce,
defendants were contingency fee attorneys who were accused of breach of their fiduciary duty in
connection with representation ofclients in civil litigation. 997 S.W.2d 229 (Tex. 1999). The thrust
of the holding is that an attorney is subject to fee forfeiture if he breaches his fiduciary duty,
if he does not cause the client harm. Id. The primary reasoning is that an agent who commits
malfeasance should not profit from it. It is, to say the least, a seminal case and reauired reading for
all attorneys.
B.
Representations to the Opposing Side
Normally, an attorney has no liability to the opposing side. Martin v. Trevino, 578 S.W.2d.
763 (TexCivApp.-Corpus Christi, August 29,1978). An important exception exists in the case of
negligent representation. See McCamish, Martin, Brown & L o e f f l v. F.E. Appling Interests, 991
S.W.2d 787 (Tex. 1999). An additional area for estate lawyers is discussed in Belt v. Oppenheimer,
Blend, Tate & Harrison, Inc., 192 S.W.3d 780 (Tex. 2006).
C.
Representations to Third Parties
Breach of fiduciary duty can occur when the attorney, acting as an intermediary, makes
misrepresentations between clients in a broker exchange. Gen. Res. Org., Inc. v. Deadman, 907
S . W.2d 22 (Tex. App.-San Antonio 1995, writ denied). In Deadman, attorneys and their law firm
arranged an agreement with their clients for the sale of alleged gold with a selling broker's principal.
Id. at 26. The attorneys guaranteed that, if clients paid into firm's trust account $150,000 as good
faith security deposit, the money would be guaranteed by a foreign banking corporation. Id
However, the firm subsequentlypaid money directly to personal account of selling broker's principal,
who withdrew money in cash within 48 hours. Id. The principal stated the clients failed to prove
their financial capability and lost their deposit. Id. Other potential buyers of this gold also failed to
qualify and lost their deposits. Id. In an affidavit by one of the attorneys, the attorney stated that
she had seen the gold and seen documentation indicating the existence of 1,000,000 troy ounces of
gold, and the clients relied on this statement. Id. at 31. The court found there was sufficient
evidence to support the jury's finding that the attorneys breached a fiduciary relationship with their
clients. Id. See also Ernst & Young, L.L.P. v. Pacific Mut. Life Ins. Co., 5 1 S.W.3d 573 (Tex. 2001)
("[A] misrepresentation made through an intermediary is actionable if it is intended to influence a
third person's conduct").
D.
The State Bar
The Commission for Lawyer Discipline may institute a disciplinary proceeding against an
attorney even after he has been sued by his client for breach of fiduciary duty. Acevedo v. Comm'n
For Lawyer Discipline, 131 S.W.3d 99 (Tex. App.-Sa11 Antonio 2004)(mem. op.). In Acevedo, the
client gave her attorney the unlimited power of attorney. Id. at 106. The attorney prepared legal
documents transferring client's real property to attorney's wife without any consideration and also
realizing the client could not read small print in documents, and while misrepresenting the true
purpose of the documents. Id. The court found that the attorney violated Rule 1.08 by entering into
a prohibited transaction with his client. Id. The attorney argued that the lower court erred in using
evidence in a previous case where the attorney's former client sued the attorney for breach of
fiduciary duty. Id. In the civil case, the client won a judgment against the attorney for breach of
fiduciary duty. Id. Acevedo v. Stiles, No. 04-02-00077-CV, 2003 Tex. App. WL 21010604 (Tex.
App. - San Antonio 2003, pet. denied)(unpublished opinion). The court stated the issues regarding
the Disciplinary Rules ofProfessiona1Conduct "were not 'actually litigated' in the client's breach of
fiduciary lawsuit against the attorney. Acevedo, 131 S.W.3d at 106. Thus, the court held "neither
res judicata nor collateral estoppel is implicated." Id. In other words, if you lose a civil lawsuit, the
State Bar will have the right to pursue you, if they choose, for the same transaction.
I.
TALK TO THE CLIENT
Failure to communicate with the client is the single most common factor in cases in which
clients complain about their attorneys. Even when the attorney has committed other egregious
mistakes, and caused other harm, it is almost inevitably true that the communication with the client
has been faulty.
Thousands of articles have been written about this, and while lawyers in the State of Texas
are repeatedly sanctioned and disbarred for this infraction, it is one of the most common.
Tallc to your client. It is simple advice, yet true. When I was in law school, Professor
Hippard at the University of Houston School of Law said that every client has a story and you should
take the time to actually listen to the client's story. This takes time. It is infinitely easier to be
persuasive and sincere regarding a client that you actually know than it is to argue on behalf of
someone who is merely a file entry.
In addition, even smart, sophisticated clients do not know the legal significance of certain
facts. Clients do not always disclose the details that you want to Itnow. Rather, many times they tell
the parts of the story with which they are familiar or that they think are important. It is crucial that
you spend enough time with them that you understand the facts, as well as their perspective and
goals.
The law is simple. You must keep your client reasonably informed. TDR 1.03 and 2.01.
Sharon Conway stated the test quite simply:
Attorneys are required to keep their clients "reasonably informed"
about their cases and to "promptly comply with reasonable requests
for information." The easiest way to do this is to provide your clients
with copies of documents as they are generated andlor received by
your office. Your clients should have copies of virtually everything
that is done on their cases. Taking this simple step will not only serve
to keep your clients informed about their cases, but will also probably
decrease the number of telephone calls you receive from clients
wanting to know the status of their cases, and the expense is usually
well worth incurring. Sometimes you will get calls from clients who
do not understand what the documents are and need an explanation.
It is easier to answer questions when clients have the documents in
their hands and can look at them as you explain their significance to
the case. Furthermore, your clients will probably be happy to see you
are working on their cases and that their cases appear to he
progressing. Clients have an absolute, unqualified right to know what
is going on in their cases, and the reason is simple--it is not your case,
it is the client's case. NEVER forget that, and you are well on your
way to avoiding grievances of this nature.
Sharon E. Conway, You canprevent a grievance-some basic steps that can
protectyou., 61 Tex. B. J. 542 (1998).
I will cite some examples.
A.
Failure to Communicate Can Be a Breach of Fiduciary Duty
Breach of fiduciary duty occurs when an attorney fails to inform her client of actions done
in the client's case. Vickery v. Vickery,No. 0 1-94-0 1004-CV, 1997 Tex. App. WL 75 1995 (Tex.
App.-Houston [lst Dist.],pet, denied)(unpuhlishedopinion). In Vickery,theattorney filed apetition
for divorce in her client's name without ever consulting the client or obtaining her permission. Id.
at 34. The attorney also prepared her client's husband's answer and counterclaim; someone in her
office signed it for the husband, and her office filed this document. Id. The attorney never informed
her client that the husband filed a counterclaim. Id The attorney testified she never informed her
client of the client's legal rights in a divorce. Id. The client testified she never discussed the divorce
with her attorney until the day the husband persuaded her to sign the divorce decree. The client
stated she told her attorney she did not want the divorce. Id However, the attorney told her client
that she was "doing the right thing because she was protecting the family's assets by signing the
decree." Id. The attorney also testified that the client discussed with the attorney that she wanted
the divorce. Id. The jury, however, did not believe the attorney. Id. (Hard to believe, isn't it?) The
court found the evidence was legally and factually sufficient to support the jury's finding that the
attorney breached her fiduciary duty to her client. Id.
Subsequently, the Commission of Lawyer Discipline brought a disciplinary action for
violation of Texas Disciplinary Rules of Professional Conduct, Rule 1.03 against the attorney.
Richards v. Comm'nfor Lawyer Discipline, 35 S.W.3d 243 (Tex. App.-Houston [14th Dist.] 2000,
no pet.), ( i e., failing to give candid, independent advice). The attorney argued the client did not
contact the attorney to seek any advice, and thus, the attorney "fulfilled her client's expectations" at
the time. Id. at 248. However, the court found the attorney had never communicated with her client
about anything concerning the divorce until after the divorce. Id. The court held the attorney did
not "reasonably fulfill client expectations for information consistent with the duty to act in the
client's best interests" by "failing to discuss any part of the divorce with her client and by failing to
obtain her client's approval on any part of the divorce." Id. The attorney also argued that she way
only giving "technical advice", an argument the court rejected.
The commentary of Rule 1.03 "illustrates that it is not the quantity, but the quality and
content of the communications that shows compliance with Rule 1.03." Eureste v. Comm'n For
Lawyer Discipline, 76 S.W.3d 184,200 (Tex. App.-Houston [14thDist.] 2002, no pet.). In Eureste,
the court stated, "the lawyer should reasonably fulfill client expectations for information coilsistent
with the dutv to act in the client's best interests and the client's overall requirements as to the
character of representation." Id. In the disciplinary action, the client criticized the quality as well
as the Quantityof his attorney's communication with him. Id. The court found the client's testimony
revealed that his expectations were not met. Id. The client tried to call his attorney at his office and
was told the attorney was not there or was unavailable. Id. The staff in the attorney's Amarillo
office became angry with the client and told him, "you are supposed to come to us before you talk
to him." Id Yet, the staff never explained to the client what they were doing to help him. Id.
Instead, the staff told the client, "you are just going to have to talk to Mr. Eureste. He is your
lawyer." Id. The attorney contacted the client about four times, but the attorney never told the client
what he was doing to help him obtain an operation on his shoulder. Id 200-201. The court found
the communications between the attorney and his client or the attorney's office led the client to
believe his attorney had an obligation to help him obtain the operation and that the client was left
with the expectation that the attorney would help him obtain the operation. Id. The court found the
evidence was both legally and factually sufficient to show the attorney failed to keep his client
reasonably informed. Id
Another case where an attorney failed to keep his clients informed on the status of their case
involved the acquisition of green cards. Bellino v. Comm'nfor Lawyer Discipline, 124 S.W.3d 380,
387 (Tex. App.-Dallas 2003, pet. denied). In Bellino, adisciplinary action was brought against the
attorney for failing to keeps his clients informed. Id. Two clients hired the attorney to obtain green
cards for three cooks at the clients' restaurant. Id. The attorney was paid in cash and was to obtain
the green cards within a year or he would refund their money according to his advertising. Id. From
the clients' testimony, the clients had great difficulty getting the attorney to return their phone calls
when they inquired about the status of the case. Id. Four years later, the attorney notified his clients
that he was referring the case to an immigration lawyer. Id After the clients gained the new lawyer's
identity, one to two months later, the attorney sent the necessary files to the new lawyer. Id The
clients' new lawyer discovered a letter from the Immigration and Naturalization Service informing
the attorney that one application for a green card was denied for abandonment, because the attorney
had failed to respond to a request for further information. Id. at 387-388. The attorney never
obtained green cards nor did he return the fee he received to do so. Id. The court held there was
more than a scintilla of evidence to support determinations that the attorney "failed to keep a client
reasonably informed about the status of a matter." Id
An attorney must keep the client reasonably informed about the status of the case and to
explain a matter to permit the client to make informed decisions when settlement is involved.
Bellino, 124 S.W.3d at 380. In Bellino, the attorney had two clients, and for each client, the attorney
settled their cases without ever informing them he had done so. Id at 386-387. The clients only
discovered this fact by contacting the insurance company or through another attorney. Id Both
clients never received any accounting of money received or distributed. Id The court held that there
was more than a scintilla of evidence to support the attorney "violated rule 1.02(a) [of the Texas
Disciplinary Rules of Professional Conduct] by failing to obtain the client's consent before accepting
a settlement offer" and "failed to keep the client reasonably informed and to explain a matter to
permit the client to make informed decisions (Texas Disciplinary Rules of Professional Conduct
1.03(a) and (h))." Id
An attorney must also promptly reply with reasonable requests for information. Hines v.
Comm'nfor Lawyer Discipline, 28 S.W.3d 697 (Tex. App.-Corpus Christi 2000, no pet.). In Hines,
the attorney accepted money to represent a client in a child support enforcement case. Id The
attorney did not file the necessary amendment to the client's pleadings to keep her case from being
dismissed. Id. at 701. The court found the attorney failed to inform the client of her options after
an adverse ruling, so that she could make an informed decision. Id. The court also found the attornev
"did not prolnptly comply with reasonable requests for information and failed to protect her interests
after he stormed
.. representing- her." Id. at 701-702. The court stated if the attorney "believed that his
representation had terminated or that the client's former attorney was going to further advise the
client, he could easily have made that clear to her, either orally or in writing." Id The court held
the evidence was legally and factually sufficient to support the trial court's finding that appellant
violated Texas Rules of Disciplinary Conduct 1.03(a), 1.03(h), and 1.15(d). Id Resolution Trust
Corp. v. H-, P.C., 128 F.R.D. 647 (N.D. Tex. 1989).
-
What is client "property?" What is the client entitled to if the client
says: "I want the entire file hack?" In Resolution Trust Corp. v. H-,
P.C., 128 F.R.D. 647 (N.D. Tex. 1989), Judge Sanders addressed the
issue of ownership of files generated by a law firm during its
representation of a client. The judge initially noted the holding in
Nolan v. Foreman, 665 F.2d 738,742 (5th Cir. 1982), that "a client
has the right to the return of his papers on request." The defendant
firm argued that rule encompassed only "materials that the client had
previously given to the attorney." Id at 648. Rejecting that
argument, Judge Sanders commented on the "virtually universal
practice of former attorneys transferring the entire client file to new
counsel." Id. Limiting such complete transfers to situations
involving a transfer from lawyer to lawyer would be "contrary to the
fiduciary and agency nature of the relationship between a client and
an attorney. The relationship between a client and an attorney has
been held by Texas courts to be one of '[tlhe most abundant good
faith; absolute and perfect candor or openness and honesty; the
absence of any concealment or deception, however slight . . . .
Defendant's interpretation implies a close and more trusting
relationship between law firms than between a firm and its client, to
the exclusion of a client . . . . So long as an attorney represents his
client, he owes that client a fiduciary duty to disclose all information
to the client." Id. (citation omitted). Judge Sanders also rejected the
firm's objection that copying the entire file would cost between
$70,000 and $80,000, stating that the firm was "not obligated to copy
the files, only to turn them over." Id. at 650. Thus, he ordered the
firm to turn over to the client "the entire contents, including . . .
attorneys' notes and legal memoranda, of all files maintained for [the
client] . . . ." Id.
Charles Herring, Texas Legal Malpractice & Lawyer Discipline, 5th Edition, p. 291.
B.
Settlement
Ms. Conway states:
Settlement Offers--Do not ever send demand letters for a client's case
without first getting the client's consent on the amount of the
settlement offer. Malting any settlement demands or offers without
your client's consent, even if you have a power of attorney or apparent
authorization in your contract to negotiate a settlement on your own,
is just asking for trouble. The case is the client's, not yours, and the
client should be the one with the final say on what offers to make.
Many lawyers believe it is perfectly ethical and acceptable to send a
demand letter on behalf of their clients without even discussing a
figure with the clients, and then to settle the case without any input
from the client. This type of conduct is not appropriate and is often
the impetus for a grievance. Instead, the attorney should advise the
client on what he or she thinks is the best strategy for settlement
discussions and about the value of the case. The attorney should
explain the settlement possibilities to the client as he or she sees
them, then confirm the information provided to the client in writing.
You will find that, with proper background, your clients will almost
always follow your advice and approve your strategy, but discussing
it with the client and getting approval avoids a significant number of
problems, such as clients not knowing what is going on in their cases
or feeling as if they have no.
Negotiation Authority--In addition, if possible, you should have a
settlement range approved in advance by the client to give you some
negotiation room with opposing counsel. This also provides the client
a better understanding of the process, (e.g., your first settlement
demand is rarely accepted and is usually considered to be only a
starting point in settlement negotiations). Follow up in writing if
possible. Finally, do not forget to send copies of demand letters and
any responses, counteroffers, and other correspondence to your
clients. Again, this facilitates explanations of strategy and procedure
with your clients and helps create a level of trust between you and
your clients.
Sharon E. Conway, You canprevent a grievance-some basic steps that can
protectyou., 61 Tex. B. J. 542 (1998).
Mediation is an example of how courts treat communication problems between attorney and
client. Though there are limited exceptions, the statutes governing mediation state that anything
taking place within the process is privileged. TEXCIV.PRAC.&REM.CODEANN.5 154.073 (Vernon
1989). However, numerous cases have allowed discovery behind the mediation process. See In re
Daley, 29 S.W.3d 915 (Tex. App.-Beaumont 2000, no pet.), In re Learjet Inc., 59 S.W.3d 842 (Tex.
App.-Texarltana 2001), Avary v. Bank ofAmerica, N.A., 72 S.W.3d 779 (Tex. App.-Dallas 2002,
no pet.), Alford v. Bryant, 137 S.W.3d 916 (Tex. App.-Dallas 2004, pet. denied). This reasoning
would seem to be consistent with the rule that the attorney should not be able to shield information
from his own client.
C.
The Reasons
There are several reasons why attorneys fail to keep their clients "reasonably informed".
Here are some of the most basic:
1.
ELITISM - they are lay people, we are attorneys. They will not understand the
statute of limitations in medical malpractice cases, they will not understand the
statute of frauds as it relates to the sale of businesses, and they will not understand
the rules of statutory construction.
This elitism is usually not overt. We do not routinely believe ourselves more
intelligent or more refined or more sophisticated than our clients. However, it is a
lot of time, a lot of trouble and a lot of hassle to explain to a client the intricacies of
practicing law. In my'field, civil trial law, it is difficult to explain to a client details
that it took me 20 years to know.
2.
BILLING - we are, after all, trying to make a living. It is difficult to bill the file for
long-winded explanations to the client about things that are perfectly obvious to you.
It is difficult to sit on the phone with a client for hours (or even minutes) to explain
details, when you know that you have undertaken the correct action under the
circumstances. For contingency fee lawyers and for flat fee lawyers (i.e., personal
injury, divorce, criminal, etc.), it is unproductive time that will not result in any
additional fee.
3.
DON'T KILL THE MESSENGER SYNDROME-No one wants to be the bearer of
bad tidings and, of course, the communications that most need to be relayed are those
communicatioiis that are adverse. Obviously, most of us keep our clients reasonably
informed about favorable developments; it is the unfavorable developments that are
not spoken of in detail.
4.
IT IS BORING - It is boring for me to explain to an accident victim for the five
thousandth time in mv career how PIP coverage
- works or that auto accident cases
many times are evaluated based upon a "multiple" of medical bills. It is simply less
tedious to avoid the subject
and to recommend settlement (or non-settlement) to the
"
client based upon our experience and expertise in these matters. However, it is a
mistake. One reason is because we are ethically obligated to tell our clients of these
facts. Another arguably more significant reason is that inevitably, no matter how
skilled apractitioner is, sooner or later mistakes will be made, reckonings will be had
and adverse results will occur. At those moments, it is absolutely. comvletel~,and
totally imperative that you will have built with your client a relationship of honesty,
integrity, communication, and openness.
I have, on numerous occasions, had clients who came to my office, informed me of some
mistake their attorney had made, and assured me that they did not wish to file suit against him
because he had been open and honest with them from the beginning. I have also seen numerous
cases where I have been approached in cases where the client did not know the true nature of any
wrongdoing that had been done by their attorney, but mistrusted the attorney. On examination,
serious breaches were found, leading to a malpractice action. The conclusion: spend the time
necessary to talk with your client.
11.
PUT IT IN WRITING
Reducing a fee agreement to writing may not be necessary for all
clients, especially clients that your firm has had for many years, but
for new clients, having a written agreement saves you time and
money and can avoid misunderstandingsabout the fee agreement that
may arise in the future. Some attorneys are not aware that
contingency fee agreements are required by the Texas Disciplinary
Rules of Professional Conduct to be "in writing and [to] state the
method by which the fee is to be determined."
Sharon E. Conway, You can prevent a grievance-some basic steps that can
protectyou., 61 Tex. B. J. 542 (1998).
For example, in mediation, good attorneys use the mediator to explain concepts, difficulties,
and the point of view of the opposing side to the client. However, all mediators will strenuously
resist any effort to testify on any issue (whether for the client or for the attorney). Therefore, you
cannot rely upon the mediator to be the person who will corroborate all of those wonderful
disclosures that you made to your client in an appropriate, timely and ethical fashion. Even if the
mediator made those comments to your clients, or even if he heard you make them in the mediator's
presence, you can be in a "swearing match" with your client over the disclosures. A reduction to
writing would foreclose the entire dispute.
The same is true in business negotiations; do not expect, or rely, on your client's adversary,
or business colleague, to testify to those exculpatory comments you made in the course of dealing
with your client.
A.
Contingency Fee Contracts Must Be In Writing
Some agreements between an attorney and client are required to be in writing. For example,
contingency fee agreements between the attorney and client must be in writing, pursuant to Rule
1.04(d) of the Texas Disciplinary Rules of Professional Conduct. Rule 1.04(d) provides that a
contingent fee agreement must be in writing and must state the method by which the fee is to be
determined. Comm'nfor Lawyer Discipline v. Eisenman, 98 1 S.W.2d 737,739 (Tex. App.-Houston
[I" List.J 1998, pet. denied) (citing Tex. Disciplinary R. Prof 1Conduct 1.04(d)). In Eisenman, the
attorney changed the terms of the original contingency fee agreement without notifiing his client.
He did not put this change into writing, nor state the method by which he calculated the fee, nor
identify what expenses would be deducted, all of which are required by the rules to be included in
a written contingency fee agreement. Accordingly, he violated Rule 1.04(d). Id. at 741.
In Jackson Law Ofice, P.C. v. Chappell,the client sued her attorneys for breach of fiduciary
duty regarding attorney's fees. 37 S.W.3d 15 (Tex. App.-Tyler 2000, pet denied). The court found
the attorneys "were vague about their fee arrangement, and did not reduce the fee agreement to
writing." Id at 22. In addition to violating the disciplinary rules when an attorney does not reduce
his contingency fee agreement to writing, it also creates an area of dispute between the attorney and
client later in the litigation, which may lead to further litigation against the attorney.
B.
Referral Agreements Must Be In Writing
The Texas Supreme Court has now promulgated changes to the rules regarding referral. The
Texas Disciplinary Rules of Professional Conduct, Rule 1.04, which deals with referral fees, was
amended in January of 2005 and became effective on March 1,2005. Rule 1.04 now mandates that
a client agree in writing to the terms of any referral agreement. Specifically, the following changes
have been made to Rule 1.04 with regard to referral agreements:
A division or arrangement for a division of a fee between lawyers who are not in the
(f)
same firm may be made only if:
(1)
The division is:
(i) in proportion to the professional services performed by each lawyer; or
(ii) made between lawyers who assumes joint responsibility for the
representation; and
the client consents in writing to the terms of the arrangement prior to the time of
(2)
the association or referral proposed, including:
(i) the identity of all lawyers or law firms who will participate in the fee
sharing arrangement; and
(ii) whether fees will be divided based on the proportion of services
performed or by lawyers agreeing to assume joint responsibility for the
representation, and
(iii) the share of the fee that each lawyer or law firm will receive, if the
division is based on the proportion of services performed, the basis on
which the division will be made; and
the aggregate fee does not violate paragraph (a).
(3)
(g)
(h)
Every agreement that allows a lawyer or law firm to associate other counsel in
representation of a person, or to refer the person to other counsel for such representation,
and that results in such an association with or referral to a different law firm or a lawyer
in such a different firm, shall be confirmed by an arrangement conforming to paragraph
(f). Consent by a client or prospective client without knowledge of the information
specified in subparagraph (f)(2) does not constitute a confirmation within the meaning
of this rule. No attorney shall collect or seek to collect fees or expenses in connection
with any such agreement that is not confirmed in that way, except for:
the reasonable value of legal services provided to that person; and
(1)
the reasonable and necessary expenses actually incurred on behalf of that
(2)
person.
Paragraph ( f ) of this rule does not apply to payment to a former partner or associate
pursuant to a separation or retirement agreement, or to a lawyer referral program
certified by the State Bar of Texas in accordance with the Texas Lawyer Referral
Service Quality Act. Tex. Occ. Code 952.001 et seq., or any amendments or
remodifications thereof.
Tex. Disciplinary R. PrPl Conduct 1.04 (0- (h).
As stated in Rule 1.04, the client must agree in writing to the referral and the terms of the
referral prior to the association of new counsel or referral to new counsel. Additionally, and rather
significantly, a referral fee will now have to be based on the services actually performed by the
referring lawyer or on an undertaking ofjoint responsibility.
111.
CONFLICTS OF INTEREST
Conflict of interest situations bring more disrepute upon the legal profession than virtually
any other area. After all, we have communication problems with doctors, but do not hold doctors
in disrespect because of it. We know of several professions (dotcom's come immediately to mind)
where people malce unbelievable amounts of money far in excess of their labors, and the public does
not seem to mind. Since it is not merely compensation nor communication, what is it about lawyers
that raises the public conscience so vociferously?
The answer is that, many times, clients do not actually believe that you are loyal to their
interest. They are required to confide in you, are required to tell you secrets and personal information
in order for you to represent them correctly, but they are also convinced that you put your own
interest above theirs. Contingency fee lawyers have large problems here because they have a
financial interest in the case. Family lawyers are susceptible because the more they charge, the more
they allegedly "dissipate" the marital estate. The public believes that lawyers are pursuing their own
individual interests rather than the clients. Lawyers accentuate the problem by vigorously arguing
that they are entitled to take cases against former clients, are entitled to use contracts of employment
that are one-sided, and are entitled to represent both sides in a transaction. Unfortunately, the case
law demonstrates that the public's suspicions are sometimes justified.
A.
Former Clients / Substanlially Related Matters
Attorneys are not technically barred from handling a matter adverse to their former clients.
This is a fair rule, since many times the former representation is remote in time or in subject matter.
It is a situation, though, that should always be approached with caution.
I n State Bar ofTexas v. Dolenz, 3 3. W.3d 260, 271 (Tex. App.-Dallas 1999, no pel.), the
attorney violated rule 1.06(b)(l) of the Texas Disciplinary Rules of Professional Conduct by
representing his daughter in her suit against one ofthe attorney's former clients. The attorney argued
there was no evidence to prove his representation of his daughter involved "a substantially related
matter" in which her interests were materially and directly adverse to his former client's interests.
Id. While the attorney was representingthe former client, the former client executed four promissory
notes in favor of the attorney as payment for his services. Id Two of the notes were secured by the
former client's artwork and other property. Id. The attorney then assigned the notes to his daughter.
Id. The month before the daughter sued the former client, the attorney wrote to the former client to
inform him that the attorney had assigned the notes to his daughter. Id. Later, the attorney and his
daughter went to the former client's house with a moving van to collect the paintings. Id. Then the
attorney filed a motion to withdraw as the former client's counsel in an ongoing suit against a bank.
Id The next day, the attorney filed a snit against the former client in justice of the peace court. Id.
The court found the justice of the peace court's doclcet sheet indicated the attorney represented his
daughter, and the attorney admitted he filed that suit as his daughter's attorney. Id. The former client
filed a motion to disqualify the attorney. Id. When the suit was filed, the federal court had not yet
ruled on the attorney's motion to withdraw as the former client's counsel in the suit against the bank.
Id.
The court concluded that from this evidence, the jury could have reasonably inferred that the
daughter's suit against the former client was substantially related to the notes the former client had
executed to pay the attorney for his services. Id. Also, the court stated since the daughter and former
client were on opposite sides of the lawsuit, there was evidence that the daughter's interests were
materially and directly adverse to the former client's interests. Id Thus, the court held there was
more than a scintilla of evidence to support the jury's finding that the attorney violated rule
1.06(b)(l) of the Texas Disciplinary Rules of Professional Conduct. Id.
The court in Dolenz also stated that the jury could have reasonably inferred that the attorney
and his client had differing interests in the transaction where the attorney made himself the
beneficiary of a trust consisting of the attorney's artwork, and the client's artworlc was collateral for
the notes. Id. The court also stated the jury could also have inferred that the client expected the
attorney to exercise his professional judgment for client's protection since he was his attorney. Id
The court also concluded the attorney did not conclusively prove that the client consented after full
disclosure. Id. at 268. Thus, the court held the evidence supported the jury's finding that the
attorney violated the rules of professional conduct by entering into a prohibited business transaction.
Id.
B.
Failure to Disclose
An attorney who fails to disclose conflicts of interest may be liable for breach of fiduciary
duty. Bellows v. Sun Miguel, No. 14-00-00071-CV, 2002 Tex. App. WL 835667 (Tex.
App.-Houston [I4 Dist.] 2002, pet. denied)(unpublished opinion). In Bellows, the attorney
represented different families in a lawsuit against a car manufacturer. Id One of the attorney's
clients sued the attorney for breach of fiduciary duty. Id. The court found the attorney failed to
disclose the conflicts of interest in representing all of the families. Id The court stated all the
families were in a position where they were competing for funds offered by the manufacturer in
settling the case. Id
Another case concerning a failure to disclose conflict of interest among several clients
involved thousands of individual polybutylene cases. Spera v. Fleming, Hovenkamp & Grayson,
P.C., 25 S.W.3d 863 (Tex. App.-Houston [14 Dist.] 2000, no pet.). The law firm in Speva
represented thousands of people against polybutylene manufacturers. Id. at 867. The law firm
reached a settlement and sought an appeal of attorneys' fees. Id The law firm later distributed two
pieces of correspondence between the law firm and its polybutylene clients. Id at 872. One
correspondence was a newsletter distributed by the law firm to all of its polybutylene clients to
announce the law firm's plans to appeal the district court's order reducing the attorneys' fees. Id.
The other correspondence was a letter in which the law firm offered to resolve the conflict involving
the attorneys' fees set aside by the judge of the district court and to settle that matter. Id One of the
law firm's polybutylene clients sued the law firm for breach of fiduciary duty. Id The court stated
the clients used the evidence of the correspondence to show that they were not informed about the
potential conflict of interest and given an opportunity to evaluate whether they should obtain other
counsel prior to the settlement. Id The court found that the law firm was not entitled to summary
judgment on these grounds. Id.
The case of McMahan v. Greenwood is interesting. In the case, Mr. Henderson, an attorney,
apparently represented a business. McMahan purchased a portion of the business and claimed that
Mr. Henderson gave him advice on the business during the period of time that he was an owner.
Later, the two owners became adverse. The "new owner" sued the attorney, claiming
misrepresentations. Even though the attorney represented the original owner in negotiating and
having executed a settlement agreement, still the "new owner" was allowed to sue the attorney. The
gist of the ruling was that the "new owner" client asserted an attorney-client relationship at the
original transaction and claimed that even at the time of the settlement agreement, the attorney did
not come back and clear up any misstatements or misrepresentations that had been made at the time
of the original engagement. See also Kotzur v. Kelly, 791 S.W.2d 254 (Tex.App.-Corpus Christi
May 24, 1990) regarding a misrepresentation that the attorney did not disclose that he did not
represent the client. The rule: clarify in the original transnational documents that the attorney is
representing one party, and perhaps even make sure that all parties are aware of your position that
you have made no representations upon which the non-client is relying.
C.
Attorney Disqualification
The law of attorney disqualification in litigation is complicated, coinplex and confusing. See
Samara L. Kline, Conflicts of interest: Motions to disqualt5--1dentlhing the rules ofthe game, 57
Tex. B. J. 240 (1994). There is substantial case law where attorneys are disqualified and many other
similar cases where they are not.
However, that is not the only critical inquiry. The critical inquiry arises when your own
client brings suit against you for forfeiture of your fee under Arce in connection with a conflict of
interest. That question should be considered when deciding to undertake representation. Also, many
clients are clever enough to hire attorneys for the specific purpose of disqualifying them from
adverse representation.
IV.
SELF-DEALING
Rule 1.08 classifies certain transactions with clients as prohibited. One category of these is
the "self-dealing" situations. If '"self-dealing' by the fiduciary is alleped, a 'presumption of
unfairness' automatically arises and the burden is placed on the fiduciary to prove (a) that the
questioned transaction was made in good faith, (b) for a fair consideration, and (c) after full and
complete disclosure of all material information to the principal." Jackson Law Ofice,P.C.v.
Chappell,37 S.W.3d 15 (Tex. App.-Tyler 2000, pet. denied).
When an attorney improperly takes revenues from a client, it can be considered theft.
Specifically, it is considered theft when a person unlawfully appropriates property with intent to
deprive the owner of property. TEX.PEN.CODEANN.5 3 1.03(a) (Vernon 2003). An appropriation
of property is uulawhl if it is taken without the owner's effective consent. Id. at 53 1.03(b)(l).
Property is defined in the Penal Code as a document, including money that represents or embodies
anything of value. Id. at § 3 l.Ol(S)(c). Under the Texas Theft Liability Act, aperson who commits
a theft is liable for the damages resulting from that theft. TEX.CIV.PRAC.& REM. CODEANN.
5134.003 (Vernon 1989).
Not only will an attorney be liable for damages resulting from his theft, if convicted, he may
also be disbarred. If an attorney is convicted of a felony involving moral turpitude or of any
misdemeanor involving theft, embezzlement, or fraudulent misappropriation of money or other
property,
- - . the district court of the county of the residence of the convicted attorney shall enter an
order suspending the attorney from the practice of law during the pendency of any appeals from the
conviction. An attorney who has been given probation after the conviction, whether adjudicated or
unadjudicated, shall be-suspendedfrom the practice of law during the probation. TEX.GOV'TCODE
ANN.§81.078(b)(Vernon 1987). Upon final conviction of any felony involving moral turpitude or
any misdemeanor involving theft, embezzlement or fraudulent misappropriation of money or other
property, the district court of the county of the residence of the convicted attorney shall enter an
order disbarring the attorney. TEX.GOV'TCODEANN.581.078(c) (Vernon 1987).
A.
Case Law
In Jackson,the client sued her attorneys for breach of fiduciary duty regarding attorney's
fees." Jackson Law Ofice,37 S.W.3d at 15. The court found the attorneys "were vague about their
fee arrangement, and did not reduce the fee agreement to writing." Id. at 22. The attorneys also
"failed to maintain billing records, failed to record services rendered, and failed to provide billing
statements" to the client. Id. In a divorce proceeding, the attorneys and the client stated to the court
that there had been $18,000.00 in attorney's fees to that point. Id. The attorneys later refused to
provide an itemized statement of those attorney's fees after the client's request unless she agreed to
pay whatever the itemization showed, even though it would be more than $18,000.00. Id. Evidence
revealed that the attorneys inflated the hours charged during the course of the representation. Id.
Additionally, the attorneys charged the client for defending themselves against a grievance filed by
her husband. Id. From the client's testimony, the attorneys misrepresented to the client that her
husband would be responsible for her attorney's fees. Id. The attorneys also required the client to
execute an assignment of the proceeds from certain properties as a condition for continuing to
represent her, and failed to male appropriate disclosures of the legal effect of the assignment. Id.
The attorneys did not recommend that the client seek outside legal counsel before entering into the
agreement. Id The court found the previous evidence to support the "jury's finding of breach of
fiduciary duty in that there is evidence of failure to disclose, misrepresentation, conflict of interest,
and self-dealing." Id.
Breach of fiduciary duty occurs when the attorney withholds collected funds on the basis that
the client owes the attorney a recovery fee. Avila v. Havana Painting Co., 761 S.W.2d 398 (Tex.
App.-Houston [14 Dist.] 1988, writ denied). In Avila, the client hired the attorney to collect past due
accounts and paid the attorney for his services. Id. at 399. Once the attorney collected the funds,
he refused to tender the funds to the client stating that the client owed the attorney a percentage in
recovery. Id The court stated the client was entitled to receive the funds collected by the attorney
and that the attorney refused to deliver those funds to client until the client sued the attorney for
those funds. Id. at 400. The court found this evidence was sufficient to show a breach of fiduciary
duty. Id.
Breach of fiduciary duty occurs when attorneys settle a claim without the client's consent for
personal financial reasons. Francisco v. Foret No. 05-01-00783-CV, 2002 Tex. App. WL 535455
(Tex. App.-Dallas 2002, pet denied)(unreported opinion).
In Francisco, the attorneys signed a settlement agreement binding on the clients under Texas Rule
of Civil Procedure 11. Id. Evidence showed that at the time the case was settled, the attorneys were
working solely on the clients' case and had incurred significant expenses and debts. Id. ~ h clients
d
stated one attorney re~eatedlytried to convince the clients to agree to the settlement and "'raised his
voice"' and "'yelied'; at theclients when they told the attorney they had changed their minds about
settling
- the case. I d , The clients stated the attorney threatened to sue them for changing their minds,
and threatened to require the clients to immediately repay expenses incurred by thk attorneys if the
clients did not agree to the settlement. Id The clients ultimately consented to the settlement. Id
The court foundthe evidence that the attorneys settled the clients' claims without consent, withheld
that information from the clients, needed to settle the claims for personal financial reasons, and
threatened and harassed the clients to ratify the settlement constituted more than a scintilla of
evidence that the attorneys breached their fiduciary duty to the clients. Id.
B.
Prohibited Transactions
A transfer of property as a gift may be in violation of Rule 1.08, if the transfer is substantial.
Olson v. Estate of Watson, 52 S.W.3d 865 (Tex. App. - El Paso 2001, no pet.). In Olson, the
attorney entered into a contract to prepare a will, move into the client's house, pay property taxes,
and make improvements in exchange for a fee simple interest in the house upon the client's death.
Id. at 867. The will effectually devises the entirety of the client's estate, which consisted of both her
real and personal property to the attorney. Olson at 870. The commentq to the Texas Disciplinary
Rules of Professional Conduct, provide that "[ilf effectuation of a substantial gift requires preparing
a legal instrument such as a will or conveyance, however, the client should have the detached advice
that another lawyer can provide." Tex. Disciplinary R. Prof'l Conduct 1.08, cmt. 3. The court found
no evidence of detached advice of another lawyer. Olson at 870. The court held the attorney's
acceptance of such a substantial gift from his client "did not meet general standards of fairness as
a matter of law" and thus, violated Rule 1.08(b) when the attorney drafted his client's will. Id
Even if the attorney is a close friend of the client, the attorney may not prepare a will giving
the attorney a substantial gift from the client. Shields v. Texas Scottish Rite Hosp. for Crippled
Children, 11 S.W.3d 457 (Tex. App.- Eastland 2000, pet. denied). InShields, stocks, bonds, cash,
and bank accounts valued at over $2 million constituted a substantial gift to the attorney who drafted
the decedent's will, and thus, such gift failed as a matter of public policy, where attorney was not
related to decedent. Id. at 460. The court denied the gift to the attorney. Id.
V.
HIRE OTHER LAWYERS
A lawyer shall not accept or continue employment in a legal matter which the lawyer lcnows
or should know is beyond the lawyer's competence unless, with the client's prior informed consent,
another lawyer who is competent to handle the matter is associated, or a lawyer's assistance is
reasonably required in an emergency situation and he limits his advice and assistance to that which
is reasonably necessary. Tex. Disciplinary R. Prof'l Conduct l.Ol(a)(l)-(2). A lawyer generally
should not accept or continue employment in any area of the law in which the lawyer is not and will
not be prepared to render competent legal services. "Competence" is defined as possession of the
legal lcnowledge, sltill, and training reasonably necessary for the representation. Competent
representation contemplates appropriate application by the lawyer of that legal knowledge, skill and
training, reasonable thoroughness in the study and analysis of the law and facts, and reasonable
attentiveness to the responsibilities owed to the client. Id. at cmt. n.1.
A lawyer may decline representation that could not possibly be handled by the lawyer in a
competent manner due to the matter's complexity, a representation wherein the lawyer is unfamiliar
with the subject matter or the case, and where the lawyer has insufficient time to acquire the requisite
degree of competence. Hawkins v. Comm'nfor Lawyer Discipline, 988 S.W.2d 927, 934 (Tex.
App.-El Paso 1999,pet. denied). Nevertheless, lawyers can abuse this exception by utilizing it when
they presently lack the legal background and training necessary to competently handle a matter but
they know they could remedy those defects through reasonable efforts. Id.
In determining whether a matter is beyond a lawyer's competence, relevant factors include
relative complexity and specialized nature of the matter, the lawyer's general experience in the field
in question, the preparation and study the lawyer will be able to give the matter, and whether it is
feasible either to refer the matter to or associate a lawyer of established competence in the field in
question. Tex. Disciplinary R. Prof1 Conduct 1.01, cmt. n.2. A lawyer may not need to have special
training or prior experience to accept employment to handle legal problems of a type, with which the
lawyer is unfamiliar. Id. at cmt. 3.
Additionally, Rule 1.O1(b) prohibits a lawyer from neglecting a legal matter entrusted to the
lawyer; or frequently failing to carry out completely the obligations that the lawyer owes to a client
or clients. TEX.GOV'TCODEANN.tit. 2, art. 10 § 9, Rule 1.OI(b)(l)-(2) (Vernon 1987). As used in
this rule, "neglect" means inattentiveness involving a conscious disregard for the responsibilities
owed to a client or clients. Tex. Disciplinary R. Profl Conduct 1.01(c). Comment 6 to Rule 1.01
explains that having accepted employment, a lawyer should act with competence, commitment, and
dedication to the interest of the client and with zeal in advocacy upon the client's behalf. A lawyer
who acts in good faith is not subject to discipline, under those provisions of Rule 1.01(b) for an
isolated inadvertent or unskilled act of omission, tactical error, or error of judgment. Joyner v.
Comm'nfor Lawyer Discipline, 102 S.W.3d 344,347 (Tex. App.-Dallas 2003, no pet.) (citing, Tex.
Disciplinary R. Profl Conduct, 1.01 cmt. n.7).
Though generally an attorney may freely reject any person's offer of professional
employment, a different standard applied when that offer emanates from the court. Hawkins at 934.
When an attorney obtains representation by court appointment, the attorney may not merely decline
the representation as provided under Rule 1.01(a), but must show the tribunal good cause why he
cannot represent the client. Id, at 933 The attorney may not simply decide that he or she is not
competent to handle the appointed matter and decline or refuse representation without the court's
oermission. Id. Rule 1.15(c)
directs that when ordered to do so by a tribunal, a lawver shall continue
~,
representation notwithstanding good cause for terminating the representation. Tex. Disciplinary R.
Prof l Conduct 1.15[c).
. , Additionally, rule 1.15[c)
. , serves to shield an attorney who holds an honest
belief that he or she is incompetent to represent an appointed client from ethical repercussions
resulting from the continued court ordered representation. Hawkins at 935. By explicitly requiring
the lawyer to accede to the tribunal's ruling to continue representation despite the lawyer's
misgivings, Rule 1.15(c) protects the lawyer against charges of wrongdoing. Id. In Hawkins, the
court appointed Hawkins to represent a client in a criminal matter. Hawkins filed a Motion for
Appointment of an Effective and Competent Attorney assertingthat he was not competentto practice
crilninal law and therefore could not represent his client without violating Rules 1.01and 6.01 of the
Texas Disciplinary Rules of Professional Conduct. Even though Hawlcins filed this motion, he filed
motions on behalf of his client. Hawkins at 930 - 932. The court found that Hawkins could not
decide that he was not competent to handle the appointed matter and refuse to comply with the court
order to continue his appointed representation of the criminal defendant. Id at 927.
Each lawyer should strive to become and remain proficient and competent in the practice of
law. To maintain the requisite knowledge and slcill of a competent practitioner, a lawyer should
engage in continuing education. Id. at cmt. n.8.
A.
"Tommy, Share Your Toys."
An attorney must notify the client when he associates another attorney to the case and also
must not neglect the case after the association when the attorney remains lead counsel. Joyner, 102
S.W.3d at 344. In Joyner, the client hired the attorney for apersonal injury claim. Id. at 347. The
attorney's primary field of practice was criminal law so he associated the case with other competent
attorneys not in his office. Id. The court found the attorney did not communicate this fact to his
client, and thus, did not receive the client's consent to this association. Id. The court held this
evidence was factually and legally sufficient to show the attorney violated Rule l.Ol(a). Id
The attorney also violated Rule 1.01(b) by failing to respond to a motion for summary
judgment, appearing at the hearing, or filing any post-judgment motions or notice of appeal. Id. The
attorney argued he acted in good faith by associating competent counsel and by forwarding
documents and papers to them. Id. The attorney, however, remained lead counsel of record, his
office received defendant's motion for summaryjudgment, and the attorney did not share offices with
either attorney he associated. Id. citing Palmer v. Canlrell, 747 S.W.2d 39,41 (Tex. App.-Houston
[Ist Dist.] 1988, no writ) (holding that "[wlhere a single adverse party is represented by two
attornevs who are not associated in a firm. we believe that it is sufficient to serve the attornev who
is designated as lead counsel because he has 'control in the management of the cause' " and citing
rule of civil procedure 8). The court stated this evidence was sufficient to show the attornev violated
Rule l . ~ l ( b j .Id
B.
Withdrawal
Attorneys have the option to withdraw from representing a client. If you find that you need
to withdraw from representation, there are certain rules that need to be followed in order to withdraw
properly. "Upon termination of representation, a lawyer shall take steps to the extent reasonably
practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time
for employment of other counsel, surrendering papers and property to which the client is entitled and
refunding any advance payments of unearned fees." Tex. Disciplinary R. Prof 1 Conduct 1.15(d).
In Eureste, the attorney did not protect his client's interests upon termination of representation.
Eureste v. Comm'n For Lawyer Discipline, 76 S.W.3d 184,201 (Tex. App.-Houston [14th Dist.]
2002, no pet.). The attorney argued "his withdrawal complied with the requirements of Rule 1.15
by giving reasonable notice both verbally and in writing, allowing time for employment of other
counsel", and returning the client's file. Id The attorney also argued he fully complied with Rule
1.15 since the client did not ask for the return of any unearned fees. Id The court found "evidence
from which the trial court could reasonably infer that the attorney abruptly withdrew when there were
no more benefits from which to extract attorney's fees." Id The court stated, "the attorney's
withdrawal corresponded with the time that the client's benefits ran out." Id From the client's
testimony, he did not even know the attorney's Amarillo office was being closed until he called the
office and was informed he had reached the attorney's Houston office instead. Id The client was
also not informed that the attorney planned to withdraw until a staffperson informed him, "Bernard0
Eureste is going to drop you." Id The court found the evidence was legally and factually sufficient
to show that the attorney failed to take reasonable steps to protect his client's interests when the
attorney withdrew, and thus, violated Rule 1.15(b). Id.
Another case where attorneys failed to communicate their withdrawal from representation
involved a bankruptcy proceeding. Vander Voort v. State Bar of Texas, 802 S.W.2d 332 (Tex.
App.-Houston [l Dist.] 1990,writ denied). In Vander Voort,the attorneys terminated representation
o f their client without directly communicating this fact, without delivering the file to their client, and
without complying with the banlcruptcy court's rules until some time later. Id. at 334. The court
found the attorneys failed to notify their client that he was not represented. Id. The banluuptcy court
issued a show cause order for the attorneys to show cause why they did not appear for trial. Id At
this time is when the attorneys responded to protect their client's interests in the adversary
proceeding. Id. The court held the evidence supported a violation o f the withdrawal from
representation rule by the attorneys. Id.