Divorce Law MalPractice & Some Principal Principles of Legal Ethics

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Michael Sean Quinn, Ph.D, J.D., Etc., Author

Quinn and Quinn
1300 West Lynn #208
Austin, Texas 78703

(o) 512-296-2594

(c) 512-656-0503

mquinn@msqlaw.com

I have been observing the problems of lawyers practicing divorce law for a long time.  Here are some of the overarching (or underlying) non-legal principles I think I have learned.  Many of these “principles” are derived from the opinions of practitioners. These are not the sort of principles which are such that if L violates it, s/he is potentially exposed to malpractice liability.  The case law on legal malpractice been set forth elsewhere in many places. The principles sketched here are not “duty-to-client” principles; if they are anything, they are principles of wisdom for honorable self-interest. (Of course, that fact that Quinn believes it and sets forth does not make it true.  Who would ever have thought that?)  

PPP #1 (Malpractice Practice “Doomsday?”
)

There is very little probability a divorce lawyer will be “hit” with
judgments of malpractice.  In other
words, there is very little likelihood
that a family lawyer (or any other) will lose a malpractice case.  Here is a speculation:  to the extent that malpractice cases are
brought and pursued, they are probably brought more, as the size of the case
and/or the amount of the assets, go up.

One reason for this is the well
known-requirement that victory in the underlying divorce case must be proved in
order to prevail in the malpractice case.

Insurance is needed, of course,
but—usually—its most important protection is picking up the tab for legal
bills.  (The features, elements, and
dangers of malpractice CLE-type lecturing are to induce fear [1])   

“Big-Time” lawyers have
slightly more dangers than those who handle smaller cases, but not much. They
should have insurance, too.

PPP 
#2 (Even Less)

There is almost no chance of
losing a cause of action alleging breaches of fiduciary duties against L who is
handling a divorce case.   There is a very simple reason for this.[2]  Except under very, very few circumstances (maybe), and at very special times,
there is no such thing as spouses owing each other fiduciary duties. [3]   

Conduct, which is a never-actionable
breach of fiduciaries by one of the Cs, can substantially affect the division
of community property, given the discretionary actions of the trial judge.[4]

A breach of a fiduciary duty
action may be brought against a divorce lawyer for mishandling C’s assets and
maybe C herself.  (I emphasize the
feminine pronoun here for obvious reasons of published legal history.)

PPP
# 3

The greatest risk of any assault on L is
there being a conflict of interest.  This
will arise if L provides anything as miniscule as a bit of advice to ~C and
opposing counsel, at least about anything having to do with the case. TxDR 1.6(a)
(see also comment on loyalty) Avoid it at all costs; notify C if it
happens.  Get C’s permission/authorization
in advance.

A Question Regarding PPP #3

What about raising breach of fiduciary
duty in the divorce case?

Answer:  It
won’t hurt anything, except to make L look a little ignorant.  It is completely unnecessary.  Everything relevant can be proved without it.[5]

PPP #4 (Fraud on Community)

An allegation of “fraud on the
community is a different story, even though C’s probability of winning is still
lower than in a malpractice case.[6]  If a spouse does this, and gets caught,
juries and judges will be outraged 

PPP  # 5

All family lawyers should have
lawyer E & O insurance.[7]  Its main use is to pay legal fees.  It may also pay relatively small settlement
amounts under its duty to indemnify. 
Those kinds of payments will seldom be necessary, as already
indicated.  Most legal mal cases, of
which there are not many, are resolved for L and against C on motions for
summary judgment.

However, there is usually not
enough money arising out of lawyer errors in divorce cases to attract the right
sort of plaintiffs’ lawyer.  It entails too
much work, work too complex, not enough recovery money, not to mention fee-money.[8]

In addition, there is one
crucial element in proving injurious lawyer error that makes it extremely
difficult to win these cases.

PPP # 6 (Quinn’s List of “Watch Outs”)

           Think
at least three times about taking “accursed” clients:  those given to rage,[9]
impulsive sneakiness, or addicted to it, those who have sued a lawyer before,
those who have sued a lot of anybodies, those who have significant addictions:
drugs, alcohol (if very serious), gambling, those who are reluctant about a
fairly quick payment system, and so forth—on and on. One may also have serious questions about the systematically sickly. (Consider the following: If something is seriously “wrong with,” “dangerous about,” or “red flag-ish” about H, there will be a corresponding–sometimes opposite, sometimes roughtly the same–characteristic for W, and vice versa.

Consider meditating on the
dangers to you of the truly dangerous client. 
Your arrogance, hubris and erroneous self-estimate as to handling
complex personalities should be canceled or resisted.  There are nothing but temptations.  Be even more careful if you are considering
taking a case simply because you need the money.

PPP # 7 
(Monetary Temptations)

Under the vast, vast majority of situations of situations, do
not sue an ex-client for fees.[10]  Eat the loss. 
Recognize the problem. 
Investigate the applicant for client-hood. Insist on a retainer.  Insist on a written retainer agreement and
get a withdrawal clause in the agreement. 
If the prospective client refuses to sign it, don’t take him.  (Watch out even for your mother.)

A Questions Regarding Pleading Response

If L is
sued, he certainly must deploy affirmative defenses, counter claims of some
sort, even cross actions, and suits to bring others into the case. Granted that Ls should usually not sue Cs fees, does it make sense for unpaid fees be a counter claim or a
cross claim?  I don’t see how to
avoid it.

**************************************************************************************

           How does Legal Ethics fit into
all this?  Model R1.5?

None of these PPPs are relief from working diligently,
focused, and embracing workaholism, if you’re the sort.   Be careful about having no life outside of
work.  It will lead you to hating what
you do, and that leads not only to personal misery but also to errors. Some
types of advising have more to do with the psychology of the practice of
lawyers—but these are an integral part or dimension of the ethics of lawyering.
These remarks only squash the psychological side of practice. At the same office life can be very meaningful, and it sometimes involved less stress and anxiety than home life.

[1] Not an
entirely bad idea.

[2]  Sometimes actions which are hidings are
called “fiduciary duties” as a matter of simplicity (I guess although they are
not.  In
re Marriage of Moore,
890 S.W.2d 821 (Tex. App.—Amarillo 1994,
no writ).

[3] Remember:
there is a huge distance between L’s accusing 
his non-client of fiduciary duty breaches  in the divorce, and accusing L of breach of
fiduciary duties of his handling of that case and C in the tort case against
the lawyer later.

[4] See Mayes v. Stewart, 11 S.W.3d 440 (Tex. App.—Houston
[14th Dist.] 2000, pet. denied)

[5] It’s
within the realm of ModelR 1.1 and ModelR 1.2.

[6]
Admittedly, there is no data about this, except that I have found very few
cases where such a cause of action could be brought.  One can imagine it being brought.

[7] For
generations it has been called “legal malpractice insurance.”  That location should be dropped.

There are more torts against lawyers than malpractice.

[8] Nothing
about these “Practical Practice PPPs” encourages the taking of unreasonable
risks. For a “How To” manual of some of these types of activities.

[9] What
exhibits itself as rage?   Does this
count as rage?   Is there such a thing as
concealed or hidden but dangerous rage?

Read More

More On Depositions & Leading Questions

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 SOME
POSSIBLE DEPOSITION QUESTIONS IN

LEGAL MALPRACTICE AND SIMILAR CASES

Michael Sean Quinn, Ph.D, J.D., Etc.

Quinn & Quinn

2630 Exposition Blvd  #115

Austin, Texas 78703

(o) 512-296-2594

(c) 512-656-0503

mquinn@msqlaw.com
(Resumes: www.michaelseanquinn.com)

I am a fan of  the use of
leading questions, even in depositions.

Some of the questions are treated herein as declarative sentences.

That is designed to indicate that a lot can be done by tone and
facial expression.

Blogged on this general topic once before a while back. See 8/8/12. 

Some of readers found it interesting, so I do it again now.

You did not do the best that a
reasonable lawyer would do in this kind of case?

You don’t care what the answer is.  If L says No, the next question is, “Tell me how?”  If the answer is Yes, stop.

           

You did not do the best you
could?

If L says No, ask, “What did you not do?  What did you do poorly?  What did you not do that you should have?”  But, if L says Yes,  let it go.

You didn’t do all of what a
reasonable lawyer in the same or similar case would do, did you?

If No,
ask, “What all did you leave out? 
List for me what you did not do which you think you should done.”
 If Yes,
leave it.

Your investigation of the case
was not up to snuff, was it?

If Yes,
stop.  If No, ask, “What all did you not do, that you think you should
have?  What all did you not do,
that you think a reasonable lawyer would have done?”

C did not tell you this or that,
did she? And so on.

Your claims file does not report
this.  It does not report that.

            If Yes, the demand is “Show me”.

          If No, move to a series of open questions.

You believe that C does not lie,
don’t you?

If the answer is Yes, stop.  If the
answer is I Do Not, ask for a
complete list.

For each entry on the list, ask, “You
don’t really know that, do you?” 

            If L says I do, then ask “How?”  Ask again for more details about the             

          basis.

You believe that C tells the
truth, don’t you?

If Yes,
stop.  If No, ask for a list—a compete list.  Ask about the empirical basis.

That’s not in your file, is it?

            If Yes, it’s “Show me.” 

You leave important stuff out of
your file, true?

            If No, give a list, maybe.

            If Yes, there a variety of things to
do, and maybe several can be done.

You know that all attorneys owe
every one of its client’s fiduciary duties, true?    

If No,
stop.  If Yes, ask for a definition.

You did not discharge all of your
fiduciary duties to C, did you?

            If No, stop.  If Yes,
think about stopping.

If L asks for a definition– “So
you don’t know the meaning of the word, do you?”

You don’t care what the answer is.  It’s clear that a Yes answer is a wonderful answer. 
You may want to stop.  If
it’s No, ask for a list, and
then pursue the empirical foundations of the list.

You did not advise your client in
a satisfactory way, true?

If C says you didn’t advise her
as to X, she is lying, true? 

X was an important issue in the
case wasn’t it?

You didn’t discuss X with her at
all, did you?

Again you don’t care much what the answer
is:  (1) YES, I DID. (2) GRANTED I DID NOT. (3) I DON’T REMEMBER, CHECK MY FILE.
(4) I DON’T REMEMBER. ONE REASON IS THAT I DON’T REALLY KEEP THAT SORT OF THING
IN MY CLIENT FILE. (5) WHAT DO YOU MEAN BY ‘ADVISE’?

        

The next set of questions are sometimes a
bit over done.  Nevertheless, you still
often do not care what the answer is.  If
who get what the witness takes to be a base hit for him, (1) always consider
asking “How?”  (2) Also consider
specifying some act ina general way—as a hypo if necessary—and then use a
leading question to ask, “Is it not true that failing to do X is below the standard
of care?  Or, “Is it not true that doing
X is below the standard of care?

You did not take the deposition
of Quinn, true?

No one did, true or false?

He was the expert for the
opposite client, true?

You’ve said in you
interrogatories that you thought you could get

him
disqualified, true?

Did you try?

You did not succeed, did you?

Your Motion on this matter was
not up to snuff was it?

Even the judge said that,
correct? 

You did not even spell his name
correctly did you?

His last name is not “Quine,
true?”

His middle name is not “Scum,”
right?

His first name is not “Moncoile,”
don’t you agree?

You can spell the English
language, isn’t that right?

You had received Quinn’s report,
had you not?

You are not an “idiot” are you?

You have a degree from the
University of Phoenix, do you not?

And a law degree
from the American University of the Canary Islands, don’t you?

[And so on and so forth?]

You would agree, surely that the
DRs are part of a manual for competent
lawyer   work.

You would agree that the DR,s are
fundamental principles of lawyering morality, true?

Do you agree that following the
DRs is consistent in every way with providing a client with a vigorous.

Do you reject the idea that
following the DRs cannot in and of itself constitute legal malpractice?

You would also agree that the
Texas Lawyers Creed is also a set of guidelines or acceptable practice,
wouldn’t you.

And the same is true for the ABA
Model Rules isn’t is.

           

And so on.

The End.

                       

Read More

Semantics of the Accepted Elements of Legal Malpractice

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Michael Sean Quinn, Ph.D, J.D., Etc.
Quinn & Quinn

2630 Exposition Blvd  #115

Austin, Texas 78703

(o) 512-296-2594

(c) 512-656-0503

mquinn@msqlaw.com
(Resumes: www.michaelseanquinn.com)

Descriptions of the cause of action “legal malpractice” and for similar professional torts, e.g., accountant, among others, use the phrases “reasonable and prudent,”
“reasonably prudent,” and “of ordinary prudence.”  For example, there are over 1200 uses of these phrases in Texas cases.These are longstanding formulations; their
uses are deeply embedded in custom; and they are tradition.*  In fact these are different, and they can constitute misleading
wording.  Their use in lawyer malpractice
cases is like that. (Since they are different, they can make a difference to legal argument, most significantly, oral arguments to juries.)

(What is the difference between tradition and custom.  Maybe something can be a custom without being a tradition.  Maybe traditions are necessarily longer than customs?  Perhaps one little activity can be a custom, but it be too small to be a tradition? I don’t think either of these is true.  I wonder what is?)

The reason is simple.  In the
context of evaluating lawyer performance the lawyer’s actions and omissions
must always be at least reasonable. 
What does it mean when it is said that they must also be “prudent”? The
word “prudence” can just means reasonable, in which case, their use together–one modifying the other–is
redundant.  It could mean “reasonably
looking after some affairs or other,” in which case, it still means nothing but
reasonable.  Or, it might mean what it usually
means, “That one is looking after what he does carefully while facing ‘forward’.”  This usage is again redundant. 

It must also be remembered that the word “prudent” has a whiff of
self-interest built into it. Thus, one is prudent when he is looking after his
own affairs in certain ways.  Obviously
that is a wrong idea in this context. L is not treating C as he is required to
do if, and to the extent, that he is looking after his own self interest. The idea of prudence also has breezes of the
ideas of restraint, caution, and conservative-ness built into it.   These may or may not be in C’s interests,
and certainly may not accord with his instructions.

It seems to me that an act can be customary (even across a large relevant group), and even be traditional, and yet not be prudent because of some new set of events or a new situation.  Lawyer decision-making is subject to changes like this, and not just from new statutes or court decision.  The situational or train-of-event changes could be social or economic; they could be known or unknown.

Problems arise for prudence.  Can an act be prudent but unreasonable.  I am inclined to doubt it, though I think the route the prudent action may not be reasonable.  The reasoning up to the decision to act (or refrain from acting) can be unreasonable and the decision itself can both be unreasonable, and then the act turn out to be prudent.

          

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Insurance: Good Faith, Bad Faith, Fair Dealing, Defective Dealing: The Standards

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Michael Sean Quinn, Ph.D, J.D., Etc.

2630 Exposition Blvd  #115

Austin, Texas 78703

(o) 512-296-2594

(c) 512-656-0503

mquinn@msqlaw.com
www.michaelseanquinn.com
(Resumes Found Here)

I.                   Insurers
must treat the interests of its insured’s as at least equal to their own.  This is often called the “special
relationship.” It undermines the “arm’s length” idea. (First Axiom)

II.               
Insurers
have a duty to look for coverage. (Second Axiom)

III.            
Insurers
must conform to state law, so adjusters must know relevant state law.

IV.           
All
insurer conduct in every adjustment must be objective in every step of the way.
An insurer must avoid bias of mind and method. 
The same is true of prejudice.

V.              
All
adjustment activities by an insurer must be thorough, and this applies to
investigation, study, reasoning, all types of review and decision-making.

VI.           
When
an insurer is in doubt, it should seek reasonable and objective counseling.

VII.        
All
adjusters, of whatever rank, must have read the relevant policy, have at
least relevant knowledge, and/or have understood it to the best
extent possible, kept it in mind, and be thoroughly in conformity with it in
investigation and decision-making about the claim.

VIII.     
Applicable
parts of the policy have to be understood. To be understood, all
“understanding” requires truth and knowledge. 
Therefore, one must know how to interpret the policy.  This rule applies to all adjusters; however,
the more overarching the role of an adjuster, the more extensive and deeper the
understanding must be. (See #9)

IX.           
No
adjustment should proceed on the basis of an unclear policy.  This might result because it is incoherent,
because the policy is so obscure that it cannot be consistently and reasonably
understood, because it is repeatedly so vague that “anything may go,” or
because the policy is repeatedly ambiguous as too central. Any unclear sections
must be interpreted in favor of an insured. This includes vagueness, ambiguity,
and incoherence.

X.              
An
insurer may never misrepresent any nontrivial proposition, to any
insured under any circumstances.

XI.           
An
insurer must always treat an insured fairly in every phase of every
adjustment. “Fair” has multiple meanings and all of them apply. Keep in mind that the phrases “good faith” and “fair dealing are usually conjoined, so it’s “good faith and fair dealing.”

XII.        
Insurers
must treat insureds equitably in the context of adjustment. “Equity” and
“equitable” are broad, deep, and complex concepts.

XIII.     
An
insurer’s decisions may not be based on invalid arguments.  The more obvious the fallacy, the worse it
gets.

XIV.    
Insurers
and their adjusters are required to follow or act in accordance with that
insurer’s adjustment rules or guidelines.   This presupposes that they understand
them. 

XV.       
Insurers
should have internal rules or guidelines for adjustments. Adjusters should be
well trained as to principles of adjustment.

XVI.    
Insurers
in adjustments should keep an insured informed as to the direction of its
thinking and/or at least the drift of company thinking and why the insurer is
heading in that direction.

XVII. 
The
process of adjustment does not end with a denial letter or with the
existence of litigation.  Nor is it ended
by other forms of self-perceived and self-asserted dispute resolution. 

XVIII.          
Adjustment
—from start to finish and for each successive event therein—must be prompt. What counts as “prompt” depends in part on the nature and size of the claim.  Conflicts with rigid or inflexible-looking time schedules in statutes can be a real problem for insurers.

XIX.    
The
relevant claim(s) file should contain records stating the content of the
adjustment and explicit indications of observations, relevant impressions and
analyses of person’s involved, meaningful dialogue, discussions of the same
matters, and records regarding debates. All internal communiqués should be
included.

XX.       
An
insurer may never rely on its own freely-made underwriting error as
grounds for denying a claim. Standardized policies are the safest. Technically, may rely on its own underwriting decision, but this is inherently dangerous. Individualized underwriting decisions will have files backing them up, if they are sound.  The contents of those files better be good.

XXI.    
An
insurer may not rely on sources of evidence which do not have established
relevant reliability. 

XXII. 
Relying
on unreliable evidence in dealing with claims is symptomatic of
IBF.  This is dramatically true if the
insurer knows or should know that the evidence is from an unreliable source.

Not the End, Except for Now

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Legal Ethics: Fiduciary Duties–Fundamentals

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Michael Sean Quinn, Ph.D., J.D.
QUINN and QUINN

1300 West Lynn Suite 208

Austin, Texas 78703

mquinn@msqlaw.com

(o) 512-296-2594

(c) 512-656-0503
www.michaelseanQuinn.com

FIDUCIARY DUTIES:  ATTORNEY → CLIENT[1]

1.     
Attorneys owe their clients a duty of undivided loyalty. Employers Cas. Co. v. Tilley, 496 S.W.2d 552, 558 (Tex. 1973); Almanzar v. State, 682 S.W.2d 393, 94
(Tex. App.—El Paso 1984, aff’d.) 702
S.W.2d 653 (Tex. Crim. App. 1986).

2.     
“The relationship of attorney and client is one of the highest
trust and confidence and in dealing with a client, an attorney must act with
the utmost fairness and in good faith.” 
David Beck, Legal Malpractice in Texas
(2nd Ed.), 50 Baylor L.Rev.  550, 607
(1998). —Lots of good cites
can be found in this Article by a former State Bar President. 

3.     
The relationship between attorney and client is one of
“uberrima fides.”  The integrity of such
relationship should be carefully observed and scrupulously upheld at all times.  Smith v. Dean, 240 S.W.2nd 789, 791 (Tex. Civ.
App.—Waco 1951, no writ).  The phrase, uberrimae
fidei is defined:  “Of the utmost good
faith[.]”  David M. Walker, The Oxford Companion to Law,
1245 (1980).  Other legal dictionaries
are not substantially different.  Black’s
Law Dictionary (1968), for example, defines uberrima fides this way:  “The most abundant good faith; absolute and
perfect or openness and honesty; the absence of any concealment or deception, however
slight.  A phrase used to express the
perfect good faith, concealing nothing….” Id. at p. 1690 Fourth Edition, for
example.  (According to this entry in Black’s,
years ago insureds owed this duty to insurers. 
Times have changed.  So has Black’s.  The current Eighth Edition has almost nothing
interesting to say on the general subject.)  

4.     
The fiduciary obligation running from attorneys to
clients is at the heart of the attorney-client relationship.  Attorney-to-client “fiduciary obligations are
at the heart of the attorney-client relationship, and enables the client to
place unhesitating trust in the attorney’s ability to represent them
effectively.” Beck, supra note #2 at 608-609. 

5.     
Attorneys owe their clients the highest fiduciary
duties. Bloyet v. General Motors Corp., 881 S.W.2d 422, 436 (Tex. App.—Texarkana
1994), aff’d 916 S.W.2d. 949 (Tex.
1996); Judwin Properties, Inc. v. Griggs & Harrison, 911 S.W.2d 495, 506
(Tex. App.—Houston [1st Dist.] 1995, no writ). 

6.     
The attorney-client relationship is highly fiduciary in
nature and requires the utmost good faith. 
The relationship running from attorney to client carries the utmost
(i.e. the most abundant) good faith obligations.

7.     
The attorney-client relationship running from the
attorney to the client is one involving the highest good faith. “‘The cardinal
principle that an attorney owes his client the highest of good faith furnishes
the basis for a number of legal doctrines.’” ([“In 5 Tex. Jur., Attorney at Law § 32 (1930)
[citations omitted].)[2]  (Bold added.)   

8.     
Attorneys must treat their clients in such a way that
the clients apparently can  have the highest
trust and confidence in the attorney.  Smith
v. Dean, 240 S.W.2d 789, 791 (Tex. Civ. App.—Waco 1951, no writ).

9.     
Clients must be able to rationally rely upon their
attorneys to act in their – that is the client’s – best interest within the
scope of the representation (Clients must also be able to trust their attorneys
not to act against their interests in other areas, at least without antecedent
discussion, advice, action, and so forth.) Question: What if C does not want L
to act in his best interest? Should L do it anyways? If L does this, should he
conceal it from C? 

10.  As
fiduciaries of their clients, attorneys must place the interests of the clients
ahead of their own. Rogasga, Inc. v. Bank One, 932 S.W.2d 655, 663 (Tex.
App.—Dallas, 1996, no writ).  When there
is a fiduciary duty, running from one party to another, the second party is
justified in relying upon the first party to act in its best interest.  The “its” here refers to the second
party. 

11.  The
attorney-to-client relationship must be carefully observed and scrupulously
upheld by the attorney at all times.   Smith,
#8 at 791. 

12.  Attorneys
are obligated to render full and fair disclosure of facts to their clients,
when those facts are in any way material to the attorney’s representation of
the client.  Willis v. Maverick, 760
S.W.2d 642, 645 (Tex.
1988).  See, Beck, supra # 2 at 610. 

13.  Attorneys
owe their clients absolute and perfect candor, openness, and honesty at all
times. See, Employers Cas. Co. v. Tilley, 496 S.W.2d 552, 558 (Tex. 1973); Judwin
Properties, Inc. v. Griggs & Harrison, 911 S.W.2d 948, 506 (Tex.
App.—Houston [1st Dist.] 1995, no writ). 
See In re Legal Econometrics, Inc., 191 B.R. 331, 346 (Bankr. N.D. Tex. 1995).

14.  The
relationship from attorney to client must involve the “absence of any concealment
or deception, however slight.”  State v.
Baker, 537 S.W.2d 367, 374 (Tex. Civ. App.—Austin 1976, writ ref’d n.r.e.)  See, Legal Econometrics, supra #11 at 346; Judwin,
supra #11 at 506; and Byrd v. Woodriff, 891 S.W.2d 689, 700 (Tex. App.—Dallas
1994, writ den’d). 

15.  Attorneys
must preserve the confidences of their clients. 
NCNB Texas National Bank v. Coker, 765 S.W.2d 398, 399 (Tex. 1989).  The C to A relationship certainly involves
confidentiality and may involve C secrets.

16.  Clients
must rationally feel free to rely upon the advice of their attorneys. 

17.  Attorneys
must treat their clients in such a way that it is rational for the clients
unhesitatingly to fully trust the attorney. 

18.  Attorneys
must preserve and maintain confidential information about their clients,
however derived.  This is a fiduciary
duty as well as a duty in the rules of professional conduct. 

19.  Attorneys
must disclose as soon as possible to clients any and therefore all information
that might prevent attorneys from fulfilling fiduciary duties to given clients. 

20.  If
a conflict develops between the interest of one client and another, so far as
the attorney is concerned, the attorney owes a duty to each of the clients
immediately to disclose and identify the conflict.  Employers Cas. Co. v. Tilley, 496 S.W.2d 552,
558 (Tex.
1973). 

21.  “[A]ll
that is required for fiduciary duties to exist, [running from the attorney to
the client,] is that the parties, explicitly or by their conduct, manifest an
intention to create an attorney-client relationship.” [supra #2 at 609.]  See, Vinson & Elkins v. Moran, 946 S.W.2d
381, 408 (Tex. App.—Houston [14th Dist.] 1997, writ dism’d by agr.). 

22.  Under
many circumstances, an attorney has fiduciary duties to former clients.  These certainly include the duty of
confidentiality.  Under many
circumstances, it will also include the duty of loyalty.

23.  If
an attorney over-charges a client, the attorney breaches his/her fiduciary
duties. Gouging is a special stealing for the fiduciary.

24.  If
an attorney knowingly or even negligently implies to a client that he is
entitled to what is, in fact, over-payment, the attorney breaches a fiduciary
duty. This is species of lying.

25.  Because
the relationship between the attorney and the client is fiduciary in nature,
there is a presumption of unfairness or invalidity attached to attorney-client
contracts formed during the relationship. 

26.  Fiduciary
duties are equitable in nature and generally not subject to hard and fast
rules. So the extent and nature of such duties under some circumstances should
be considered in light of the contract, relationship, and/or history between
the lawyer and client. National Plan
Administrators, Inc. v. National Health Ins. Co., No. 05-006 (Texas, 2007). This case
does not involve attorneys but the principal-agent relationship. It should have
at least some authority in thinking about the attorney client relationship.
Perhaps the second sentence will not have absolute authority.

*********************************************************************************

It is interesting to note that in a number of jurisdictions, legal malpractice is not recognized as a cause of action in legal malpractice cases.  The real reason is seldom stated. Instead there is a simple reference to “fracturing.”  Here is the reason. A lawyer owes all of his/her a fiduciary duty.  And all attorney malpractice actions are grounded upon negligence. Plus, all malpractice actions require that the defendant lawyer do what another prudent lawyer would do under the circumstances.  So what does all this amount to. The negligence of the lawyer is measured against his carrying out his fiduciary duty.  It is not measured against how the average prudent citizen would act, say in driving his car.  Alas, this complication is not explained to juries well enough

[1] Not cite
all cases for any rule.

[2] Multiple
meanings.

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Quinn Quotes

Mistakes always involve being wrong in some way. This proposition may be an analytic truth or even a tautology. A mistake is not always a bad thing. A mistake is often a better learning tool than getting something right. Some mistakes, properly appreciated, are very educational. (It is hard to see how this idea “works” in representing a client.  The usual route of always explaining everything to the client will probably not work here.  Indeed, the idea involves an obvious paradox.~Michael Sean Quinn, PhD, JD, CPCU, Etc.Tweet

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Michael Sean Quinn, PhD, JD, CPCU, Etc*., is available as an expert witness in insurance disputes and other litigation matters. Contact