Michael Sean Quinn, Ph.D, J.D., Etc.*, AuthorLaw Office of Quinn and Quinn1300 West Lynn #208Austin, Texas 78703(o) 512-296-2594(c) 512-656-0503mquinn@msqlaw.com
(*Resumes: www.michaelseanquinn.com)

 Commandment Three Was First Published as a Blog on January 16, 2015
This Preface is attached to each of the parts, oppressive though that may appear.This blog  is part (1/11th) of a collection called the ELEVEN COMMANDMENTS OF LEGAL ETHICS.  There are 11 separate mini-blogs; they need not be read in any particular order.  I have tried to keep them “together,” but cyber-success is not an inevitability when I am around. An early version* of it was published a decade or so ago.  Before that very short speech versions  were used as part of a day long CLE course ordered by the Supreme Court of Texas for new lawyers.  Later for several years it was used in other CE or CLE contexts.  All of this can be found on my Resume which is linked to (attached to) my website. www.michaelseanquinn.com. There are video versions somewhere in the cyber-sphere, and if not there in the cyber-world or in e-space and/or in the so-called “real world,” for sale.  As old as it is, the collection–whether in print, in the “blogus-sky,” on a something like a motion picture–is not really out of date, except there are not explicit references it to legal ethics and the cyber world.  At the same the obligations of the lawyers have not changed much, except now there is a new dimension to our confidentiality obligations and and out obligations to keep up to date. The “code numbers” are sometimes to the ABA Model Rules and sometimes to the Texas Rules of Professional Conduct. (*The term “version” means what it says: wordings change and ideas shift, tough the latter very little. Earlier version can be found entered on July 2, 2012 and on March 12, 2014.)

Some of the Blogs will contain supplementary additions. Those added after January 1, 2015 will probably be dated, barring oversight. Readers may note that many of the cites are Texas cases.  This resulted from the history of the contents of these blogs.


Given the purposes and context in which the early versions of the essays were written, many of the legal rules explicitly numbered are from The Texas Rules that were built upon the ABA Model Rules. 


These disquisitions are revisions something I wrote at least several years ago. First editions of these essays were  begun some time ago.  Somehow their print got locked in, to some degree, so some parts of the essays were thrown out of kilter and can’t be made right today. This is particularly true along the left margins of some of the essays.

COMMANDMENT FOUR:   PERFORM PROMPTLY


            Clients are a sort of  customers.  Lawyers need to figure out what they need and what they want.  Clients, like customers, need to be pleased.  Because the rendition of legal services is complex and, to some degree, arcane, client-customers need to be educated as to what to expect if they are ever to be pleased.  Clients may be customers of a very special sort, but they are customers nonetheless.  Unlike superficial customers, clients are not always right.  Sometimes, lawyers have to help clients find their true interests.  Sometimes, it is the responsibility of lawyers to help clients figure out what they really want and want to do.  This part of the practice requires perception, restraint, judgment, tact, and discernment.  Steven Keeva, Transforming Practices:  Finding Joy and Satisfaction in the Legal Life 99 (1999).  On the other hand, clients are not patients, as classically conceived.  They are not helpless, diseased, disabled, sick, or in need of therapy, simply because they have come to a lawyer.  Nor are they necessarily in need of transformation.  Lawyers are not saviors.  They are not redeemers.  They can be helpful, and probably they should know more about psychology than they do, but as a general rule, transformers they are not.  Id. at 106.

            If you were a client, how would you like to perceive your lawyer?  As someone who is rendering services to me for a price?  Someone who is doing something for me (albeit for a price)? Someone who is being with me in a time of trial?  Keeva argues that lawyers need to care for their clients.  He argues that we need to listen to them mindfully, empathetically, and with imagination, listening for hints of what the client dare not tell us, no matter whether it is about what he has done, what he has left undone, what has been done to him, or who he really is.  Keeva is surely correct insofar as legal professionalism involves caring and service.  This does not mean, however, contrary to the view of the International Alliance of Holistic Lawyers, that lawyers must begin with mediation, as opposed to conflict, or that they must open websites in which they announce themselves to be “attorney-healers.”

            Keep in mind the identity of the person (or entity) to whom (or to which) a duty of performance is owed.  It is the client and only the client.  Texas, has a strict rule of privity.  The Texas Supreme Court has out-and-out held that lawyers involved in estate construction and administration cannot be liable for malpractice to beneficiaries, and the like, who are not their clients.

            1.         Quinn Provocation on Estate Planning:  May not a testator or such create an attorney-client contract pursuant to which one, some, or all beneficiaries are also made clients of the lawyer.  If this is possible, might not a lawyer owe a duty to a client to advise her of such a possibility?

2.         Of course, the attorney-client relationship is not completely contractual.  It also involves a status element.

Perform


A.        Legal Rules.  These rules govern the Perform! aspect of C4.  That one word commandment could be expanded to:  Get engaged and stay engaged.  Or:  Do your job now.

1.         Lawyers must be competent at what they do.  Perhaps they should even be skilled.

2.        1.04(d): Contingency fee agreements must be in writing, and there must be a method by which the contingency fee is to be computed.

3.         If a lawyer has actual or apparent authority to make promises on behalf of a client, those promises will be enforced as against the client.  Natare Corp. v. Aquatic Renovation Systems, Inc., 987 F. Supp. 695 (S. D. Ind. 1997).  The same applies to inaction by a lawyer.  It may bind a client.  Rodgers v. Curators of the University of Missouri, 135 F.3d 1216 (8th Cir. 1998); Sorensen v. Consolidated Rail Corp., 992 F. Supp. 146 (N.D.N.Y. 1998).  In general, inactions of a lawyer are imputed to his client, at least in civil cases.  SEC v. McNulty, 137 F.3d 732 (2nd Cir. 1998).

4.         1.02(a)(1):  Clients should make decisions concerning “objectives and general methods of representation.”

5.              1.02(a)(2):  Clients decide when and how to settle.

6.        Lawyers are fiduciaries of their clients.

B.        Performance.  Completely incompetent work never constitutes a performance.  In re Boykins, 748 A.2d 413 (D.C.C. 2000) (attorney completely failed to figure out what he was suppose to do).  Ky. Bar Ass’n v. Brown, 14 S.W.3d 916 (Ky. 2000) (attorney suspended for sixty days for filing virtually incomprehensible appellate brief).  Activities which are so poor as not to constitute even a minimal performance, will also trigger malpractice actions, as will be discussed below.  Nonperformance by reason of incompetence may trigger grievances as well as malpractice cases. 

1.         Neglect.  Systematic neglect can lead to discipline, as well as malpractice actions.  Heinz v. Admission for Lawyer Discipline, 28 S.W.3d 697 (Tex. App.–Corpus Christi 2000, aff’d).  See In re Roberts, 727 N.E.2d 705 (Ind. 2000).  In re Holland, 747 A.2d 1005 (R.I. 2000).  Work which is neglected is neither performed promptly nor performed at all.  Frequently, when lawyers are disciplined, it is said that they have neglected their clients or their clients’ work.  In re Keele, 783 So.2d 1261 (La. 2001); Kentucky Bar Ass’n v. Cartee, 39 S.W.3d 28 (Ky. 2001); Iowa Supreme Court Board of Professional Ethics and Conduct v. Adams, 623 N.W.2d 815 (Iowa 2001); In re DeJean, 782 So.2d 566 (La. 2001); Dayton Bar Ass’n v. Long, 743 N.E.2d 880 (Ohio 2001); In re Cozzolino, 767 A.2d 71 (R.I. 2001); In re Reichmanis, 544 S.E.2d 827 (S.C. 2001) (neglected a patent application); Office of Disciplinary Counsel v. LaCour, 743 N.E.2d 395 (Ohio 2001); In re Quinlan, 541 S.E.2d 383 (Ga. 2001). 

 Some outrageous cases of lawyer poor performance go no where. In one case, a criminal lawyer failed to bring the attention of prosecutors and trial judge various data establishing that a child of 16 read at a first grade level, did not understand important propositions asserted to him and simple questions put to him and had an IQ of 63.  The kid was found guilty of murder, and the court of appeals refused to take a serious look at the conduct of the case below and affirmed. A case seeking habeus corpus was filed in the federal system; the district court granted the writ; the state appealed; and the 7th Circuit affirmed in a blistering opinion. Sometimes federal courts report lawyer conduct to state bar associations.  That was not done in this case, so far as the available records seem to say. Perhaps the passage of time made the report pointless. More than a decade has passed since the state trial occurred in 2002, the deceased child was caused death in 2001. See Newman v. Harrington, Warden, 726 F.3d 926 (7th Cir. 2013).

2.         Moving.  If a lawyer moves and fails to notify the client where he can be reached, the lawyer will be subject to discipline.  Kentucky Bar Ass’n v. Cartee, 39 S.W.3d 28 (Ky. 2001) [2001 WL 282663].

 In one case, a lazy and incompetent lawyer failed to file motion for habeas corpus when incompetent counsel failed to pursue a capital murder correctly. Newman v. Harrington, 726 F.3d 929 (7th Cir. 2013)

3.         Illness.  An attorney who is ill should either see to it that his clients are taken care of or he should advise the clients to make other arrangements.  Not communicating and not performing is unacceptable as an alternative.  In re Starks, 542 S.W.2d 726 (S.C. 2001).

4.         Technical Knowledge.  If L does not understand the non-legal aspects of a project, L cannot be competent.  Is complete, in-depth understanding required?

5.         Lawyers are subject to discipline if they neglect to tell their clients that their licenses have been suspended.  In re Keller, 624 N.W.2d 667 (N.D. 2001) (original problem: CLE deficiencies).

C.        Making Promises:  Lawyers should make promises (after thinking about them and discussing them with the client) and then keep them.  These promises should be

1.         Written.  (Wade v. Comm’n for Lawyer Discipline, 961 S.W.2d 366 (Tex. App.–Houston [1st Dist.] 1997, no writ).  This case illustrates how unwritten contingency fees can go wrong;  controversies may develop as to the amount of the fee.)
2.         Clear.
3.         Limited and limiting.
4.         Carefully considered.
5.         Subject to rational revision.
6.         Expressly revised if and as necessary.

D.        Presumptive Invalidity.  In many states, including Texas, contracts formed between attorneys and clients during the existence of the client-lawyer relationship are presumptively invalid and presumptively considered to be a product of undue influence.  Therefore, the burden is on the attorney to demonstrate that the presumption is false.  “A contract entered into between any attorney and client after the attorney-client relationship is established is presumed unfair, and the attorney has the burden of showing the fairness and reasonableness of the agreement.”  Honeycutt v. Billingsley, 992 S.W.2d 570, 582 (Tex. App.–Houston [1st Dist.] 1999, writ denied), citing Archer v. Griffith, 390 S.W.2d 735, 739 (Tex. 1964).  See also Vaughn v. King, 167 F.3d 347 (7th Cir. 1999). 

E.         Further Commentary on Contracts.  No promise in the nature of a guarantee should ever be made.  Avoid warranties.  Sierra Fria Corp. v. Evans, 127 F.3d 175, 182 (1st Cir. 1997).  (“[L]awyers–even high-priced lawyers–ordinarily are not guarantors of favorable results.  It is neither fair, practical, nor legally appropriate to benchmark an attorney against a standard of prescience.  Thus, lawyers are not obliged to relate in exquisite detail every fact or circumstance that might conceivably have bearing on the client’s business decision or to anticipate remote risks.  By the same token, lawyers are not expected to persist relentlessly when clients–especially clients who are sophisticated businessmen–choose not to go forward after being suitably informed of looming risks.”) 

F.         More Commentary on Contingency Fee Agreements.  (Notice that the discussion here is about the agreement and not about the fee itself.  See C3 for discussion of the size of legal fees.)  Correctly conceived contingency fee contracts are part of a lawyer’s performance.

1.         Retainer Agreements.  For an odd and rather fragmentary case in which a vague retainer agreement caused problems for everyone, see Herter v. Wolfe, 961 S.W.2d 1 (Tex. App.–Houston [1st Dist.] 1995, writ dism’d).  (The trial court held the lawyer liable to the clients.  The court of appeals reversed and rendered over a dissent.  The recitation of the facts by the Houston Court of Appeals has the “feel” of a lawyer not doing his job.  Probably, the presentation of the client’s case against the lawyer was done much better.  This is a case the client should have won.)

2.         New Contracts.  Sometimes, cases evolve and new contingency fee agreements must be written.  These must be done very carefully and all the conceivable contingencies must be covered.  Otherwise, fee disputes may end up in court.  See Mohamed v. Unum Life Ins. Co., 129 F.3d 478, 479 (8th Cir. 1997) (“[T]his matter is before us for the fourth time.”).

3.         Delegation.  Unless expressly forbidden, the attorney-party to a contingency fee contract may delegate his responsibilities to another lawyer.  Referrals do not in and of themselves constitute either novation or accord and satisfaction.  Honeycutt v. Billingsley, 992 S.W.2d 570 (Tex. App.–Houston [1st Dist.] 1999, pet. denied).

 A Thought Question:  If the attorney who is a party to a contingency fee contract refers the case on, and thereby delegates his responsbilities under the contingency fee agreement, is he vicariously liable for the performance of the referee-lawyer?  Also, if the referral is negligently done, is that legal malpractice?

4.         Referral Fees.  A lawyer is not entitled to a referral fee unless he or she is the lawyer of the person referred.  The lawyer may represent a parent, or the estate of a parent, without being the lawyer for the children.  Trigo v. MuZoz Hockema & Reed, 993 S.W.2d 419 (Tex. App.–Corpus Christi 1999, pet. denied).  In this case, successor lawyers settled with the Texas Guaranty Fund for low amounts.  The settlement pot was split equally among all the plaintiffs.  It’s hard to see what the complaint is here.  If the settlements had been allocated away from the one client the referring lawyer represented, that might well have been a different story.

G.        Questions:

            1.         Friendship.  Can a lawyer and a client really be friends?  Is friendship really consistent with the lawyer’s need to structure and limit the relationship?  Can a lawyer really “exercise independent professional judgment and render candid advice” to a close friend?  See Rule 2.01.  Charles Fried has argued that lawyering must be understood on the model of friendship.  What he has in mind by the idea of friendship is significantly different than most passing friendships.37

2.         Can a lawyer really be friends with an employee of an organization which the lawyer represents?  See Rule 1.12.  If there are problems here, how do they fit within lawyer work ethic?

3.         Agency.  How can lawyers actually be agents for clients when clients do not have the right to control the details of the lawyers’ work?  They do not have such a right.  Trial strategy and tactics, for example, are within the purview of the lawyers’ discretion.  Sexton v. French, 163 F.3d 874, 885 (4th Cir. 1998).  For Texas law on this point, see Comment #1 to Rule 1.02.

4.         Multiple Lawyers:  Sometimes, one client has independent lawyers for different purposes, even in the same trial.  This is often a result of limitations consequent upon insurer involvement.  Thus, one lawyer may represent a client insofar as he is a defendant, while another lawyer may represent the client insofar as he is a third-party plaintiff.  Sometimes, courts even let lawyers ask questions.  Gust v. Jones, 162 F.3d 587, 597 (10th Cir. 1998).  This situation requires real engagement and real dialogue, both with the client and with cooperating counsel.

H.        Phases of Performance.  The following ten steps, if followed religiously, though not necessarily rigidly, will enhance virtually any performance:

1.         Listen.  Do this both deeply and carefully.

2.         Explore With.  Explore the problems with the client.  Find out what the client believes happened.  Find out what the client feels about what has happened.  Find out what the client thinks she wants. This stage requires dialogue.

3.         Explore About.  Try to figure out in your own head what may have happened and how to characterize it.  Also, try to figure out who the client really is.  This observation applies to entity clients.  They may not have souls but they do have cultures.

4.         Explain.  Talk to the client about what you think may have happened and what you think the remedies might be.

5.         Plan.  Think about what might be done, how long it will take, how much it will cost, and so forth.

6.         Promise.  Of course, all promises should be tentative, defeasible, and highly conditional.  Making commitments is a great motivator however.

7.         Execute.  It is always easier to execute when you have a plan to work from.

8.         Report.  Tell the client what’s going on.

9.         Receive Feedback.  Get the client to react.  Listen!  Listen!

10.       Recycle.  Repeat the process.

I.          Communication.  Every authority–all of them–on legal ethics and effective lawyering emphasize the importance of communicating with clients in a thorough and timely manner.  It should also be kept in mind that communications with clients should be both truthful and understandable.  This is no easy task.  Michael P. Maslanka, The Top 10 Rules of Effective Client Communication, 63 Tex. Bar J. 218 (2000).

J.          Estates and Trusts Work.  “In the estate planning context, the lawyer should discuss with the client the functions that a personal representative, trustee, or other fiduciary will perform in the client’s estate plan.  In addition, the lawyer should describe to the client the role that the lawyer for a personal representative, trustee, or other fiduciary usually plays in the administration of the fiduciary estate, including the possibility that the lawyer may owe duties tot he beneficiaries of the fiduciary estate.  By doing so, the lawyer better equips the client to select and give directions to fiduciaries.  The lawyer should be alert to the multiplicity of relationships and challenging ethical issues that may arise when the representation involves employee benefit plans, charitable trusts or foundations.”  ACTEC-50.  “In the course of the estate planning process the lawyer should assist the client in making informed judgments regarding the method by which the client’s objectives will be fulfilled.”  ACTEC-53.  In effect, this is a kind of mentorship;  it is a kind of teaching;  it is best accomplished by dialogue.  It requires listening.

K.        Termination.  Terminating a client-lawyer relationship is not something outside the attorney-client relationship.  It is within the attorney-client relationship.  Consequently, lawyers must observe the Rules of Professional Conduct when terminating relationships, and they must be mindful of the fact that the timing and method of termination may trigger  malpractice exposure.  Sanders, Bruin, Coll & Worley v.  McKay Oil Corp., 943 P.2d 104 (N.M. 1997).  Cortinez v.  Supreme Court Committee on Professional Conduct, 966 S.W.2d 251 (Ark.  1998).

L.         Letters.  Frequently, lawyers prepare engagement letters, retainer agreements, fee agreements, fee modification memos, terminations, declinations to represent, and so forth.38  Often, with repeat clients, it is not possible to have signed engagement agreements for every matter.  Probably, there should be a letter accepting and structuring every matter running from the lawyer to the client.  This norm, however, is frequently violated.  Realistically, with long-time clients, it is probably not possible to conform to the norm, as salutary as it sounds.

M.        Estate Work.  Remember:  There are other things which need to be discussed with individual client as family context.

N.        Disabled Clients.  Suppose a lawyer is hired to do one thing but the lawyer comes to believe that the client is losing it.  What may the lawyer do?  What should the lawyer do?  What must the lawyer do?  “The lawyer may take reasonable steps to protect the interests of a client the lawyer reasonably believes to be disabled, including the initiation of protective proceedings.  Doing so does not constitute an impermissible conflict of interest between the lawyer and the client.  However, a lawyer who is retained on behalf of the client to resist the institution of a guardianship or conservatorship may not take positions that are contrary to the client’s position or make disclosures contrary to the provisions” requiring that a client’s confidences be kept.  ACTEC-57.

Promptly


            The second word in the commandment Perform Promptly! emphasizes that things need to be done in a timely manner; that punctuality is important; that time is often of the essence; that clients often want things done quickly.  The clients need to know that attention is being paid to them right now, and so forth.  The rule encompasses punctuality, promptness, and a prohibition of procrastination.  It could read, Act With Dispatch!
 
A.        Legal Rules:  Remember, we are commenting on the two-word rule Perform promptly.  We have commented on the first part of the rule, the requirement that one “Perform!”  Now we are commenting on the second aspect of the rule, that performance must be done “Promptly!”

1.01:    Lawyers shall not neglect legal matters entrusted to them and they shall carry out their obligations to their clients in a timely manner. There are two meanings of the term “neglect.” One of them is that the “neglecter” does nothing or nothing timely.  The other one is that the person guilty of neglect does something but does it poorly, e.g., because of inattention. 

1.         Focus on limitations periods.

2.         The bar requires that dues be paid on time.  Nonpayment of dues leads to being kicked out of the Bar.  Legal work thereafter constitutes the unauthorized practice of law.

3.         The courts require that requests for admissions be answered on time.

 4.         The courts require that lawyers show up on time.

5.         Rules of civil procedure authorize default judgments if answers are not timely filed, and the rules governing punctuality go on and on and on.

6.         The Bar requires that CLE requirement be met timely.

B.        Commentary

1.         In Brown v. The State Bar of Texas, 960 S.W.2d 671 (Tex. App.–El Paso 1997, no writ), the trial court ordered a public reprimand of an attorney who had, in two separate divorce cases, permitted months to elapse between the court decreeing a divorce and the entry of a final judgment.  She prevailed upon appeal.  In one case she was waiting for the Statement of Facts, and while in another she sent a draft of the decree to the court, but the judge became sick and died.  The El Paso Court of Appeals reversed the judgment of the trial court.  What could the lawyer have done to move things along more quickly and to have obtained the judgments punctually?

 2.         Punctually may seem like a small thing, but it is not:

                        a.         Showing up late makes people angry.  The more it happens, the more the anger seethes.
                        b.         Consistently showing up late is self-destructive.

3.         Neglecting Trial.  A lawyer failed to show up for trial.  The judge assessed a monetary sanction and required the lawyer to get an answering service, partly so that he could be reached, and partly because he never returned his telephone calls–not even to the court.  The court of appeals affirmed the sanctionability of such conduct, but asked the district judge to give further explanation for the sanctions he imposed.  That explanation is to be found at Specialized Plating, Inc. v. Federal Environmental Services, Inc., 975 F. Supp. 397 (D. Mass. 1997).  This is a fascinating, odd, instructive, and repugnant opinion–all at once.

4.         Neglecting Appeals.  When a lawyer neglects a criminal appeal, he may suffer a serious sanction.  In re Howard, 721 N.E.2d 1126 (Ill. 1999) (There were other problems as well, but the suspension was for two years.)  Court sanctions may also be appropriate where a lawyer neglects an appeal.  In re Flannery, 186 F.3d 143 (2nd Cir. 1999).  Consistent failure to comply with court deadlines and procedural requirements not only violates both directives of this rule, but also may warrant suspension.  See In the Matter of McCord, 722 N.E.2d 820 (Ind. 2000) (attorney suspended from practice due to “consistent and pervasive” inability to comply with the circuit procedural rules and deadlines).  The court noted that this behavior, in addition to violating the Indiana disciplinary rule pertaining to diligence and promptness in representation, also violated the rule mandating that an attorney provide competent representation to a client.  Id. at 823.

5.         Neglecting Transactional Work.  Even where there are no court-imposed deadlines, attorneys may run into trouble for failing to diligently perform.  See Gilliam v. Ky. Bar Ass’n, 8 S.W.3d 571(Ky. 2000) (attorney publicly repermanded for failure to prepare and file patent application).

6.         Neglecting Clients’ Business In General.  If a lawyer neglects a client’s matters but does not cause injury, the lawyer has not committed the tort of malpractice.  On the other hand, if a lawyer neglects a client’s matters, then–no matter what–the lawyer may be subject to discipline.  This is particularly true when there is a pattern of neglect.39  Knowing and intentional neglect is much worse than simply fouling up.40  As usual, the worst of all situations arises when a client takes money and then fails or refuses to do anything on behalf of the client.  Columbus Bar Association v. Wolfrom, 741 N.E.2d 510 (Ohio 2001).  Obviously, if something bad happens in a case, a lawyer must promptly notify the client.  Office of Disciplinary Counsel v. LaCour, 743 N.E.2d 395 (Ohio 2001) (case dismissed and lawyer failed to notify client).

7.         Unearned Fees.  Unearned fees must be returned promptly.  So-called cash flow problems do not justify failing to return a fee, and they do not justify failing to discuss the matter with the client.  Id.

8.         Slow Return of Funds.  If a lawyer returns funds slowly, or sends them on slowly this may lead to discipline.  In re McCann, 752 So.2d 155 (La. 2000).  A line between being slow and simply stealing is probably not a bright one.

9.         Bar Dues.  In Satterwhite v. State, 979 S.W.2d 626 (Tex. 1999), the Texas Court of Criminal Appeals upheld an attorney’s criminal conviction for falsely holding himself out as an attorney while he had been suspended for failure to pay bar dues.  The judge sentenced the defendant to four and a half (!!) years in prison. Although Satterwhite seems to be an unusually harsh decision, it certainly reveals the importance of paying one’s bar dues on time.  For a similar (though not as egregious) result, see In re Quinn, 605 N.W.2d 396 (Minn. 2000) (attorney–not one of the authors–publicly reprimanded and sentenced to two years probation by state bar for practicing after being suspended for failure to pay dues and meet CLE requirements), and In re Schrader, 523 S.E.2d 327 (Ga. 1999) (Georgia has imposed one-year suspension for attorney who practiced in New York without being licensed in that state).  In re Goodman, 19 S.W.3d 111 (Ky. 2000) ($500 fine  and a published opinion that the poor devil’s name on it).  In re Halverson, 618 N.W.2d 191 (Wis. 2000) (public reprimand).

Lots and lots of Texas lawyers fall prey to the virtually automatic elimination from the roles of the bar if a lawyer fails to pay his or her dues after a reminder.  Firms can sometimes screw this up, but the lawyer is the one who is held responsible.  Question:  Any chance a lawyer would have a law suit against his law firm if the law firm’s responsibility is to pay the dues and it failed to do so and the lawyer got into trouble?

10.       Woody’s Rule.  The following rule is a specification upon a much broader principle proposed by the great philosopher Woody Allen:  90% of all successful law practice consists in showing up.  See In re Shull, 741 N.E.2d 723 (Ind. 2001).

 11.       Deliberate Delay, “Hidding Behind the Log,” and “Benign Neglect.”  Not every delay and not every omission to act constitutes neglect.  Sometimes, it is better to defer taking depositions than to take them.  Sometimes, it is better to wait than to proceed.  After all, memory fades, time distorts; the will tires; attention wanders; and so forth.  Alas, there are no litmus tests for distinguishing sound tactics from sloth.
DISQUISITION UPON THE EXPOSURE OF LAWYERS TO CIVIL REMEDIES FOR FAILING TO PERFORM OR PERFORM PROMPTLY

            Malpractice and Ethics Rules.  This outline is not about malpractice.  That is a subject for a different paper.  Nevertheless, the legal rules governing lawyers–legal ethics–are related to malpractice.  See Note, The Evidentiary Use of the Ethical Codes in Legal Malpractice:  Erasing a Double Standard, 109 Harv. L. Rev. 1102 (March 1996).  The ethics codes state that they are not designed for malpractice situations.  There is an aura of unreality about this.  Courts sometimes forbid expert witnesses in malpractice cases from referring to the ethical rules, but this is almost never a problem.  The expert witnesses simply testify that some norm or other is customary, when it is also an ethical rule.  According to this note writer, squeamishness does not make much sense:

By creating the Model [and other] Rules of Professional Conduct and the Model Code of Professional Responsibility, [as well as other codes], legal professions’ governing bodies have provided comprehensible, accessible, and enforceable rules of conduct for the nations’ exploding population of lawyers.  The fact that these rules were designed specifically for application to the disciplinary context does not overcome the logic, feasibility, or functional value of extending their application–at least in part–to the malpractice context.  Unless they articulate more compelling reasons than those reflected in present judicial thought, courts should drop any conviction that a blanket prohibition on using ethics codes in the malpractice context is necessary as a matter of law or wise as a matter of policy.  At the very least, the provisions of a jurisdiction’s ethics code that relate to the facts of a malpractice suit should be admissible in helping to establish the proper standard of care.  Id. at 1119.

            Ethics rules are quite frequently applicable to malpractice situations.41  For example, representing many parties at the same time and in the same litigation can lead to client dissatisfaction and hence to malpractice actions. Vinson & Elkins v. Moran, 946 S.W.2d 381 (Tex. App.–Houston [14th Dist.] 1997, no writ [dism’d agr.]).  Also, breaches of ethical rules are not per se malpractice.  There is an intimate connection, however.  Under many circumstances, breaches of those rules evidence negligence.  Moreover, in malpractice suits, expert witnesses will testify that lawyers have been negligent, and they will refer to rules or principles which are the equivalent of the disciplinary rules, even if they do not tell the jury that they are referring to that body of law.  In some states, violations of disciplinary rules constitute prima facie evidence of malpractice.  Sears, Roebuck & Co. v. Goldstone and Sudalter, P.C., 128 F.3d 10, 19 (1st Cir. 1997).  It is becoming easier and easier to do this, since most of the ethics rules have been incorporated into the Restatement of the Law Governing Lawyers (Third) (1998).  The new Restatement (Third) was finally formally approved once-and-for-all by the American Law Institute in 1998 although the document did not come out in hardcover until 2000.  The new Restatement (Third) is a crucial document, and it should be in every lawyer’s library.

            Tort Not Contract.  Under Texas law, legal malpractice is a tort, and the common law remedy for malpractice lies in tort, and not in contract.  Barcelo v. Elliott, 923 S.W.2d 575, 579 (Tex. 1996).  This is very odd in view of the fact that the foundation of the attorney-client relationship is contractual.  Melon Service Co. v. Touche Ross and Co., 17 S.W.3d 432 (Tex. App.–Houston [1st Dist.] 2000, __________) (“The attorney-client relationship is a contractual relationship whereby an attorney agrees to render professional services for a client.  The relationship may be expressly created by contract, or it may be implied from the actions of the parties.  Id. at 437.)  Honeycutt v. Billingsley, 992 S.W.2d 570 (Tex. App.–Houston [1st Dist.] 1999, writ denied) (considering novation as well as accord and satisfaction in the context of a contingency fee agreement).  This situation, it seems to us, is a very odd one.   Moreover, there is some tension among Texas courts about the role of contract in attorney malpractice litigation.  See Roberts v. Healey, 991 S.W.2d 873 (Tex. App.–Houston [14th Dist.] 1999, writ denied) (summary judgment not complete because it failed to deal with a breach of contract and breach of warranty allegations). 

            Our conjecture as to why legal malpractice is a tort involves several reasons.  The contract simply sets up a relationship.  Legal malpractice is an offense against the relationship, not against the contract.  Contract law tends towards the precise, whereas tort law tends to be more flexible and amorphous.  Moreover, almost all contractual obligations can be waived.  The courts feel as though they have much more flexibility in regulating favor when it comes to torts.  In addition, of course, mental anguish damages are recoverable in tort, and not usually in contract, as are punitive damages.  Still, the theoretical point at the foundation of all of this is the idea that legal malpractice is a violation of a relationship, and not simply an agreement.  Human relationships always have fuzzy edges, and one of the driving forces in contract law is to make arrangements precise.  Thus, lawyers are frequently advised to formulate retainer agreements stating precisely what the scope of the representation is.  This is a good idea.  On the other hand, it is inevitable that legal malpractice may arise outside the precise scope of a specified relationship.  Thus, in Moore v. Yarbrough, Jameson & Gray, 993 S.W.2d 760 (Tex. App.–Amarillo 1999, no pet.h.)  a woman sued her husband for divorce and physical abuse.  Two separate lawyers were utilized.  The divorce judgment came first.  The husband set up res judicata in the personal injury case.  He succeeded.  The woman sued her divorce lawyer for failing to advise her as to the significance of the divorce in the judgment case.  The lawyer defended on the grounds that he was not prosecuting the personal injury case and that that was outside the scope of his representation.  The court rejected this gambit and said that both lawyers–the divorce lawyer and the personal injury lawyer–should have advised the woman about consequences of prosecuting the cases separately.

            If legal malpractice actions are tort actions, not contract actions, then, presumably, a disappointed client, turned plaintiff, has no action for legal malpractice based upon breach of an express warranty to obtain specific results.  Holy Loch Distributors, Inc. v. Hitchcock, 531 S.E.2d 282 (S.C. 2000).  Why then are lawyers so consistently told not to promise specific results?  Is it because there may still be a contract in the nature of a guaranty?  Isn’t that what warranty is?  Is it because the promise might be a statement of fact and therefore become a fraud case?  Is it because the line between tort and contract blurs when it comes to express warranties?

            Attorney Malpractice and the Attorney-Client Relationship.  In general, an action for attorney malpractice requires proof of the existence of an attorney-client relationship.  These relationships may be created either expressly or impliedly through conduct.  This is true in virtually all states.  Sain v. Nagel, 997 F. Supp. 1002 (N.D. Ill. 1998) (conduct may have impliedly created an attorney-client relationship).  See Witzman v. Gross, 148 F.3d 988, 990 (8th Cir. 1998) (the beneficiary of a trust had no attorney-client relationship with the firm representing the trust and so had no cause of action against the lawyer under Minnesota law.) 

            In Texas, as in many other–but not all–jurisdictions, only a client may bring an action for malpractice.  Barcelo v. Elliott, 923 S.W.2d 575 (Tex. 1996).42  This situation seems to come up in probate matters more than any other situation.  Disappointed decedents would like to sue the testator’s lawyer.  They cannot.  However, a beneficiary who is also an executor can do so.  Guest v. Cochran, 993 S.W.2d 397 (Tex. App.–Houston [14th Dist.] 1999, no pet.).  It is worth remembering that not all services an attorney may render imply the existence of an attorney-client relationship.  For example, merely putting money in an attorney’s escrow fund does not create such a relationship.  Arons v. Lalime, 3 F. Supp.2d 314 (W.D.N.Y. 1997); Lucas v. Lalime, 998 F. Supp. 263 (W.D.N.Y. 1998).  The lawyer would still be a fiduciary, however.  Incidental remarks by a lawyer in the presence of a non-client do not necessarily imply the creation of an attorney-client relationship, even if those remarks contain directives.  Parker v. Carnahan, 772 S.W.2d 151 (Tex. App.–Texarkana 1989, writ denied) (L does something for C, and his activities also benefit a third party–no attorney-client relationship.)  Of course, the mere filing of a class action does not establish an attorney-client relationship between the filing attorney and the unnamed plaintiffs.  Hence, an attorney following such an action has no pre-certification duty to members of the pleaded class.  Gillespie v. Sheer, 987 S.W.2d 129 (Tex. App.–Houston [14th Dist.] 1998, pet. denied).  But see In re General Motors Corp. Pick-Up Truck Fuel Tank, 55 F.3d 768, 801 (3rd Cir. 1995), cert denied 516 U.S. 824 (1995) (finding some fiduciary duties between filing attorneys and members of the as-yet-uncertified class).

            Unlike malpractice, lawyer grievances do not require the presence of an attorney-client relationship.  If an attorney converts an investor’s funds to his own use, he may very well be sanctioned through the grievance process.  The reason is that trust is of the essence to the attorney-client relationship and to the efficient functioning of the legal system.  In re Manns, 685 N.E.2d 1071 (Ind.  1997).  (This case involved speculating in the international platinum market.  Any time a client is approached by a lawyer to get involved in metals trading, the client should get a new lawyer.)

            Of course, many states say that lawyers are sometimes liable for non-client for malpractice.  Texas rejects this view.  However, consider the following interesting situation.  Suppose L drafts a prenuptial agreement for W-to-be knows that H-to-be is not represented by counsel when–in fact– is rather stupid and hopelessly in love.  See Bonds v. Bonds, 83 Cal.Rptr.2d 783 (Cal. App. 1999).  In Texas, prenuptial agreements require that the party giving up rights be advised by counsel.  Will L see to it that H-to-be is advised by counsel?  Thought Question:  To whom does he owe this duty?  Imagine L being liable to his client failing to advise a non-client to get no advice.

            Error In Judgment/Honest Belief Rule.  Under Texas law, at one time a lawyer was virtually immune from malpractice if he acted prudently on the basis of honest beliefs about the law even if his acquisition or testing of those beliefs was negligent.  That is no longer the case.  Now the lawyer is held to a standard of negligence in all contexts, even in the context of predicting the course of the law.  Cosgrove v. Grimes, 774 S.W.2d 662, 664 -65 (Tex. 1989).  Some other states are more equivocal on this issue.  “When the law is clouded because it stands unconcretized by precedential pronouncements, a lawyer who acts in good faith and in an honest belief that his advice and acts are well-founded will not be held responsible for failing to anticipate how the law’s ambiguity will ultimately be resolved.”  Manley v.  Brown, 989 P.2d 448, 458-59 (Okla.  1999). “In a negligence case for rendition of substandard legal services, the primary issue is whether a lawyer’s conduct of litigation-related defense fell below the acceptable professional standards.  A lawyer who acts in good faith and honest belief that his advice and acts are well-founded and in the best interest of his client is not answerable for a mere error of judgment when dealing with a point of law which has not been settled by a precedent-setting pronouncement and about which reasonable doubt may be entertained by well-informed lawyers.  When the state law is doubtful or debatable, a lawyer will not be held responsible for failing to anticipate how the uncertainty will ultimately be resolved.”  Id.  at 452.  Question for thought:  Is this an honest belief standard or a negligence standard?

            Obviously, there is at most a hair’s breadth distinction between negligence and well-intentioned error in judgment.  In any state using the “Error in Judgment Rule,” plaintiff should argue negligence.  In any state where the “Negligent Prediction Rule” prevails, the defense should argue judgment.

            Texas Malpractice and Criminal Defense Work.  When clients plead guilty, it is extremely unlikely that they will prevail against a criminal defense lawyer, even if the criminal defense lawyer has been negligent in providing advice with regard to the guilty plea.  Peeler v. Hughes & Luce, 909 S.W.2d 494 (Tex. 1995) (a controversial decision from a sharply divided court43).  In general, those who are convicted of crimes have difficulty suing their lawyers for malpractice unless the convictions have been reversed or vacated.  Barnum v. Munson, Munson, Pierce, Cardwell, P.C., 998 S.W.2d 284 (Tex. App.–Dallas 1999, no writ).  It might be malpractice for a criminal defense lawyer to knowingly permit his client to go to trial in jail clothes.  Oliver v. State, 999 S.W.2d 596 (Tex. App.–Houston [14th Dist.] 1999, pet. ref’d.).  (In this case, appellate court held that it was error for the trial court to insist that this happen.)

            In Cantu v.  Texas, 993 S.W.2d 712 (Tex.  App.–San Antonio 1999), a criminal defendant was subjected to a sentence of forty years when he agreed to plead guilty on Monday, whereas the state would have settled for ten years had he pleaded guilty on Friday.  The court of appeals made it fairly clear that this result stemmed from the lack of preparation on the part of the defendant’s lawyer.  The court described the result as “offensive,” but it stopped short of saying that it was a legal mandate for reversal.  Id.  at 723.  It is troubling that a defendant must serve thirty more years because he did not make up his mind before the weekend.  The court found “practical truth” in the position of the defendant-client that had his lawyer “been prepared and eager for trial,” the state would not have insisted on the very substantial sentence.  Indeed, the “argument” has the merit of common sense and captures the reality of the court room.  A vigorous defense usually results in a better plea bargaining position.  But we cannot say as a matter of law that this was ineffective assistance of counsel considering the guilty plea a sentence within the legislative guidelines.”  Id. at 723.  The legislative guidelines prescribe a sentence between 5 and 99 years.

            As a pleading matter, the client wants to sue a lawyer for malpractice after having been having been convicted in a criminal action, the plaintiff must affirmatively plead innocence (or at least non-guilt).  Rodriguez v. Nielsen, 609 N.W.2d 368 (Neb. 2000).  An obvious point, and repleader is almost certainly everywhere allowed.  

            Ineffective Assistance of Counsel and Malpractice.  Obviously, ineffective assistance of counsel entitles the defendant to a new trial, but does it always constitute malpractice?  This will hinge on whether the defendant is ultimately convicted.  But what about the legal fees expended on the second trial?  For an ineffective assistance of counsel case where defense counsel failed to call or personally interview witnesses who would have said that they saw the decedent after the defendant supposedly killed him, see Lord v. Wood, 184 F.3d 1083 (9th Cir. 1999).

            Defenses.  When a client sues an attorney for malpractice, or a liability carrier sues on a subrogation theory, the attorney is entitled to set up affirmative defenses.  Presumably, these will apply to both the client and its managerial representative.  Reliance Nat’l Indem. Co. v. Jennings,  189 F.3d 689 (8th Cir. 1999). Disasters can be validly attributed to criminal lawyers who handle post trial matters, e.g., appeals and more importantly a motion for habeas corpus in the federal courts. Christeson v. Roper,  574 U.S. ____ (2015) (conflict of interest problem too).

            Limitations Periods.  It is two years, as befits the tort of negligence.  The question is when does the limitations period begin to run?  Usually, it begins to run from the date of the injury.  However, the discovery rule often applies so that the limitations period begins to run when the client discovers or should have discovered, the facts establishing the elements of a cause of action. Hughes v. Mahaney & Higgins, 821 S.W.2d 154, 156 (Tex. 1991).  According to Hughes, when malpractice is committed in litigation, the limitation period is tolled until all appeals in the underlying case are exhausted, at least so long as the client continues to use the same lawyer in that litigation.  See also Murphy v. Campbell, 964 S.W.2d 265, 272-73 (Tex. 1997) (limiting the tolling rule in Hughes to claims against a lawyer arising out of litigation where the party must not only assert inconsistent positions, but must also obtain new counsel).  See Norman v.  Yzaguire & Schapa, 988 S.W.2d 460 (Tex.  App.–Corpus Christi 1999, no pet.) and Eiland v. Turpin, Smith, Dyer, Saxe & McDonald, 16 S.W.3d 461 (Tex. App.–El Paso 2000) (no equitable tolling for malpractice action arising out of a bankruptcy proceeding), Edwards v. Kaye, 9 S.W.3d 310 (Tex. App.-Houston [14th Dist.] 1999, no pet. h.) (genuine issue of material fact as to whether there was equitable tolling given delays in the service of process).

            In factually complex situations, when the limitations period begins to run, when it is tolled, and when it begins to run again, is often a factual matter.  Ex parte Seabol, 2000 WL 681085 (Ala. 2000).

            Breach of fiduciary duty cases against lawyers are governed by the two-year statute of limitations.  Thus, a breach of fiduciary duties is not necessarily fraud which would fall within a longer limitations period.  Apex Towing Co. v. Tolin, 997 S.W.2d 903, 907 (Tex. App.–Beaumont 1999, pet filed) (a lawyer allegedly failed to file limitation of liability action while defending a lawsuit involving a vessel).  Svenska Finans Int’l BV v. Scolaro, Shulman, Cohen, Lawler & Bursten, P.C., 37 F.Supp.2d 178 (N.D.N.Y. 1999) (holding that the shorter three year statute of limitations applied to the plaintiff’s breach of fiduciary duty claims).

            When the discovery rule applies, the defendant-lawyers will bear the burden of proof as to when the client discovered, or reasonably should have discovered, the facts constituting the alleged legal malpractice.  Samuels v.  Nix, 989 P.2d 701 (Cal.  1999).  A lawyer’s private business dealing, even if sanctionable, does not necessarily implicate the law firm by which he is employed or of which he is a member.  An attorney’s acts in a business may not be sufficiently connected to the law firm’s business to impose liability on it.  The mere fact that a lawyer’s employment situation may offer the opportunity for tortious activity does not make the firm by which he is employed liable to the victim of that tortious activity.  Drew v.  Stanton, 603 N.W.2d 79 (S.D. 1999).  (This is standard agency law, but one might have thought the agency rules would be expanded somewhat when lawyers and law firms are involved.)

            If a client has a lawyer handling a case and that lawyer is replaced by another one who  should have realized that the first lawyer fouled things up, the statute of limitations will begin to run at the time the new lawyer should have realized that things had been fouled up.  Preblich v. Zorea, 996 P.2d 730 (Alaska 2000).  

            Attorney Fiduciary Duties to Clients.  People can have different kinds of relationships.  The law recognizes this.  Some relationships involve a high degree of trust and require a high degree of loyalty.  These relationships are fiduciary in nature.  If A is a fiduciary with respect to B, A must place B’s interest ahead of his own.  Attorney-client relationships are like this.  Fiduciary relationships differ markedly from arm’s-length relationships.  If A is in an arm’s-length relationship with B, A may pursue his own self-interest ahead of any interest of B, unless he has agreed to do certain things for B or unless the tort law requires him in specific ways to attend to the interests of B.  Another way in which fiduciary relations and arm’s-length relationships are dissimilar is in terms of the levels of disclosure required.  If A is a fiduciary with respect to B, A must make full and complete disclosure of all relevant facts to B.  The same is not true of arm’s-length relationships.  There is at least one intermediate type of relationship between fiduciary relationship and the arm’s-length relationship.  This is often called the special relationship.  The relationship insurance companies have with first-party insureds exemplifies this type of relationship.  Some believe that when a liability carrier is defending its insured, it stands in a special relationship with its insured.

            Fiduciary Duty Breaches.  The phrase “breach of fiduciary duty” is a multi-dimensional phrase.  Sometimes people think that it refers to the type of cause of action.  We are inclined to think that it should be conceptualized differently, because fiduciary duties can be breached in all sorts of ways.  We are inclined to think that each of the following is a separate cause of action:  negligent breach of fiduciary duty, grossly negligent breach of fiduciary duty, deliberate breach of fiduciary duty, and maybe some sort of strict liability for breach of fiduciary duty.  We know of no elaborate worked-out legal theory on these matters, so what we are saying is–to some degree, though not entirely–conjectural.  Perl v. St. Paul Fire & Marine Ins. Co., 345 N.W.2d 209 (Minn. 1984) (“Breach of fiduciary duty, such as disclosure of a client’s confidence or representation of adverse or competing interests, may also be characterized as a breach by an attorney of a standard of conduct, as distinguished from breach of a standard of care (which encompasses negligent performance of professional services, similar to malpractice liability in other professions).  Id. at 213.  (Emphasis added.)  This language seems to imply that breaches of fiduciary duty may be judged against different standards of care.)  Settlement activity by a lawyer which is not authorized by the client may violate fiduciary duties, and this is certainly true if the lawyer causes settlement.  Brown v. Slenker, 47 F.Supp.2d 754 (N.D. La. 1999) vacated, Brown v. Slenker 220 F.3d 411 (5th Cir. 2000) (vacating only because breach of fiduciary claim did not go to the jury).

            Actions for damages arising from breaches of fiduciary duty are like malpractice actions in that they require proof of causation and damages.  Unlike malpractice actions, they do not require proof of negligent conduct since proof of breach of fiduciary duties is enough.  Chrysler Corp. v. Carey, 5 F. Supp.2d 1023, 1033 (E.D. Mo. 1998).  If a client fails to prove that a lawyer’s breach of fiduciary duty injured him, there will be no recovery.  Courts are much more constrained in suits for breaches of fiduciary duty than they are in motions to disqualify and motions for sanctions.  In a motion to disqualify situation, all that has to be proved is a breach of some duty (such as a conflict of interest), and all that has to be proved in the sanction situation is that the breach is egregious.  Causation is not an element.  This is true for obvious reasons.  Motions to disqualify are mostly prophylactic.  (These observations do not apply to actions seeking fee forfeiture on the grounds of breach of fiduciary duties.  Burrow v. Arce, 997 S.W.2d 229 (Tex. 1999).  The reason is that what a client buys when it engages a lawyer is loyalty.  If a lawyer breaches at least some of these duties of loyalty, the client has thereby been completely deprived of one of the central services he was trying to buy.)

            Foreseeability.  Sometimes, conflicts of interest lead to malpractice.  Sometimes not.  If a law firm hires a new associate who is clerking for a judge, and the law clerk, while with the judge, continues to work on a case in which the law firm is involved, though as a result the judge recused himself after resolving case in favor of the law firm’s client, but the case has to be retried, and comes out with a result which injures the client, the law firm is not guilty of malpractice, because the conflict and the injury were not foreseeable.  Judicial impartiality is presumed and § 455(a) of the Code of Judicial Conduct and the Code of Conduct for Law Clerks “all place the burden of maintaining impartiality and the appearance of impartiality on the judge and the law clerk.  First Interstate Bank of Arizona, N.A. v. Murphy, Weir and Butler, 210 F.3d 983, 987 (9th Cir. 2000) (case involving a bankruptcy judge).

            Causation.  There are two issues involving causation.  A major question is has an injury been caused?  Answering this question focuses on both injury and causation. 

 1.         Injury:  There must have actually been an injury before there can be a legal malpractice case.  Thus, if a document creating an entity has been misdrawn, but nothing bad has happened yet, then there is no malpractice action.  Commerce Bank, N.A. v. Ogden, Newell, and Welch, 81 F.Supp.2d 1304 (M.D. Fla. 1999).

2.         Causation Itself.  Causation is frequently difficult to prove in professional malpractice cases.  Proving cause in fact means proving that, but for the lawyer’s conduct, the client would have achieved a better result.  Rodriguez v. Klein, 960 S.W.2d 179 (Tex. App.–Corpus Christi 1997, no writ).  (A lawyer’s increasing his client’s susceptibility to suit does not, by itself, constitute cause in fact).  See also Day v. Harkins & Munoz, 961 S.W.2d 278, 280-81 (Tex. App.–Houston [1st Dist.] 1997, no writ).  This case involved a legal malpractice action predicated upon a medical malpractice action gone sour.  It contains a short summary of the law governing legal malpractice.  Because there was no doctor-patient relationship, the lawyer’s error could not possibly have caused injury to his clients, therefore the lawyer prevailed.  The Lesson:  In complex cases involving malpractice, proving causation is often crucial and difficult. 

            Here is a summary of the Texas law of causation in the context of legal malpractice.  “Cause in fact is a common element in both negligence and DTPA actions.  The test for cause in fact is whether the defendant’s act or omission was a substantial factor in bringing about the injury that would not otherwise have occurred.  Generally, the issue of proximate cause tends to be a fact question although some causes in fact do not constitute legal causation as a matter of law.  A plaintiff must plead and prove that the defendant’s negligence is the proximate cause of his injury. . . .[an] act of negligence that does no more than put a person in a particular place at a particular time is too remote to constitute legal cause.”  Roberts v. Healey, 991 S.W.2d 873, 878-79 (Tex. App.–Houston [14th Dist.] 1999, writ denied)  (attorney’s failure to obtain a protective order against his client’s estranged husband, where the husband killed the client’s two small children and wounded her mother, did not constitute actionable malpractice due to lack of causation).

            It is especially difficult to prove causation in business litigation where a complex deal is involved.  This is even more true when the client business is in a deteriorating economic condition.  For an interesting pair of decisions coming to different conclusions on exactly the same facts, see Haynes and Boone v. Bowser Bouldin, Ltd., 864 S.W.2d 662 (Tex. App.–San Antonio 1993), rev’d 896 S.W.2d 179 (Tex. 1995).  The same is true in construction cases, and it is most especially true in construction cases which involve governmental entities.  Such cases often involve antecedent notice requirements of various sorts which will destroy a contractor’s claim against the state, even if the lawyer also fouls it up.  Dan Nelson Construction, Inc. v. Nodland and Dickson, 608 N.W.2d 268 (N.D. 2000).

            For an extraordinarily complex attorney malpractice case in which causation was an issue but in which–amazingly–the plaintiff prevailed, see McKnight v. Gingras, 966 F. Supp. 801 (E.D. Wis. 1997).  For a case in which causation was not proved and the plaintiff failed, see Viehwegh v. Mello, 5 F. Supp.2d 752, 759-60 (E.D. Mo. 1998).  In this case, a former client alleged that he suffered injury because of his attorney’s withdrawal from a case before the filing of the lawsuit.  The client lost because the court found that he had six months in which to find other counsel, and because he failed to prove damages.  In Briggs v. Cochran, 17 F.Supp.2d 453 (D. Md. 1998), the court entered summary judgment against a physician who sued his lawyer for malpractice because he had recommended that the physician voluntarily surrender his license after an improper sexual relationship with several patients.  The court held that the physician failed to present an expert witness on the likely outcome of medical disciplinary proceeding.

            Causation creates other problems in legal malpractice cases.  For example, when the alleged legal malpractice occurs in the context of appellate practice, judges, and not juries, are to decide causation questions.  Millhouse v. Wiesenthal, 775 S.W.2d 626 (Tex. 1989).   Moreover, in the context of at least some fiduciary duty cases, the plaintiff need not prove causation.  For example, in some cases, some fee forfeiture is automatic without proof of causation.  This is not, of course, to say that the forfeiture of an entire fee is automatically automatic.  Burrow v. Arce, 997 S.W.2d 229 (Tex. 1999).

            When a law firm sends a first-year associate alone to an important hearing on discovery sanctions, and the associate loses, does the law firm face malpractice problems?  What are the issues of causation here?  See Reilly v. Natwest Markets Group, Inc., 181 F.3d 253, 270-71 (2nd Cir. 1999). 

            If a client/plaintiff dismisses a lawsuit and then sues her lawyer for malpractice, she will have difficulty having causation as against the lawyer.  Samuel v. Hepworth, Nungester & Lezamiz, Inc., 996 P.2d 303 (Idaho 2000).  

            Lawyers and Firms.  Office-sharing arrangements do not add up to a partnership, even on a partnership-by-estoppel theory, even when there has been some loose talk in front of the client about there being a firm.  Gosselin v.  O’Dea, 40 F.  Supp.2d 45 (D.  Mass.  1999).  Obviously, these matters are very fact intensive.

            Settlement.  A lawyer may not settle his own malpractice case with a client without advising the client to seek other legal advice.  Office of Disciplinary Council v.  Clavner, 674 N.E.2d 1369 (Ohio 1997). 

            Expert Witness Requirement.  In most states, most of the time, plaintiffs in attorney malpractice cases must utilize expert witnesses.    Brown v. Slenker, 220 F.3d 411 (5th Cir. 2000).  However, this is not necessary, in some states when the issues are within the “common knowledge and experience of the layman.”  Keller v. Albright, 1 F. Supp.2d 1279, 1281 (D. Utah 1997).  Probably, virtually any malpractice action against an immigration lawyer would require an expert on legal malpractice, since the practice is not widely understood by the general public.  Obviously, when the ethics rules are somehow (whether directly or indirectly) used to set the standard for negligence, expert testimony will be needed.  See Georgou v. Fritzshall, 178 F.3d 453, 456 (7th Cir. 1999) (Easterbrook, J.). 

            Assignment of Causes of Action.  Legal malpractice claims arising out of litigation are not assignable.  Zuniga v. Groce, Locke & Hebdon, 878 S.W.2d 313, 318 (Tex. App.–San Antonio 1994, writ ref’d).  In fact, no legal malpractice claims are assignable.  Vinson & Elkins v. Moran, 946 S.W.2d 381, 396 (Tex. App.–Houston [14th Dist.] 1997, writ denied).  (holding that “the same public policy reasons for prohibiting the assignment of legal malpractice claims also bar the assignment of these other claims, [such as, claims for conspiracy, violation of the DTPA or other intentional torts].”  Id. at 396.  Curiously, the Moran decision does not mention breaches of fiduciary duty.  In at least one state, filing an assigned legal malpractice claim may be grounds for sanctions.  See Cardinal Holding Co. v. Deal, 522 S.W.2d 614 (Va. 1999).  For a summary and critique of the law in this area, see Michael Sean Quinn, On the Assignment of Legal Malpractice Claims, 37 S. Tex. L. Rev. 1203 (October 1996).

            Would it make any difference whether the claim itself was assigned or whether the proceeds of the claim were assigned?  In Mallios v.  Baker, 43 Tex.  S.  Ct.  J.  254 (January 8, 2000), a five-person majority sidestepped this issue.  The majority stated, however, that even assuming that an assignment in proceeds is the same as the assignment of a cause of action, if only a partial assignment is made, the assignor may still pursue his claim.  Id. at 256.  (The majority, ever so gently, hinted that if the assignment of a legal malpractice claim is void as contrary to law and public policy, then the assignor would still have it and would have standing to sue.  It is difficult to see why an attempt to make an assignment which was ultimately void would invalidate the claim in the hands of the assignor.)  Four of the concurring justices indicated that they believed the assignment was invalid.  Justice Hecht, writing for the group, emphasized the practical similarity between the assignment of a cause of action and the assignment of proceeds.  Without the assignment, the assignee would not finance the litigation.  Justice Hecht indicates that this rule does not apply to transfers in bankruptcy or to subrogation.  Significantly, Justice Hecht believes that it would be unfair to punish an assignor for executing an invalid assignment.  As a practical matter, the claim may be worthless if the owner of the claim cannot or will not prosecute it.  He regards that as none of the law’s concern.  (Interestingly, two justices who joined with the majority actually believe that legal malpractice claims should be marketable and therefore assignable.).44

            Negligent Misrepresentation.  Although in Texas only a client may sue an attorney for malpractice, Barcelo v. Elliott, 923 S.W.2d 575 (Tex. 1996), others may be able to sue a lawyer for negligent misrepresentation.  First National Bank of Durant v. Douglass, 142 F.3d 802 (5th Cir. 1998).  In this case, L made misrepresentations to a bank on behalf of his client in the service of obtaining a loan.  See McCamish, Martin, Brown & Loeffler v. F. E. Appling Interests, 991 S.W.2d 787 (1999).  The McCamish, Martin case is based upon § 552 of the Restatement (Second) of Torts (1965).  See Federal Land Bank Ass’n of Tyler v. Sloane, 825 S.W.2d 439, 442 (Tex. 1991).  Ethics rules may, from time to time, be implicated in negligent misrepresentation cases.  See Texas Disciplinary Rule 2.02.

            The McCamish, Martin case raises at least as many questions as it answers, because reliance must be justifiable in order for § 552 to apply.  Justice Hankinson, who delivered the opinion to the court, discoursed upon this matter at some length:

In determining whether Section 552’s justifiable reliance element is met, one must consider the nature of the relationship between the attorney, client, and nonclient.  Generally, courts have acknowledged that a third party’s reliance on an attorney’s representation is not justified when the representation takes place in an adversarial context.  This adversary concept reflects the notion that an attorney, hired by a client for the benefit and protection of the client’s interests, must pursue those interests with undivided loyalty (within the confines of the Texas Disciplinary Rules of Professional Conduct), without the imposition of a conflicting duty to a nonclient whose interests are adverse to the client.  Because not every situation is clearly defined as “adversarial” or “nonadversarial,” the characterization of the inter-party relationship should be guided, at least in part, by “the extent to which the interests of the client in the third party are consistent with each other.”  Id. at 974.

The court also based its opinion on § 73 of the Restatement (Third) of the Law Governing Lawyers (1999), which concerns situations in which an attorney invites a “non-client to rely on the attorney’s opinion or provision of other legal services, and the non-client so relies[.]”  Section 73 prescribes reliance “so long as the non-client is not too remote from the lawyer.”  Id. at 794-95.  There is some tension between the Barcelo case and the McCamish, Martin case.  In Barcelo, the court eschewed reliance upon the Restatement (Third) of the Law Governing Lawyers and repudiated one of its rules, whereas in McCamish, Martin, the court embraced a related section.

            Section 552 requires that the misrepresentation for the guidance of others must relate to their business transactions and must be given in the course of advising on business.  If a lawyer tells a client that a third person may, without breaking the law, tape videos of the client having sex with a number of women, the lawyer has not committed the tort of negligent misrepresentation with respect to the video artist, since the legal advice was not given for the guidance of anyone in their business transactions.  Robinson v.  Omer, 952 S.W.2d 423 (Tenn.  1997).

            One typical situation for negligent misrepresentation claims is in the presentation of title opinions.  Courts have held that attorneys owe non-clients a duty  to provide a title opinion letter that is accurate, for example, with respect to lien priorities.  RTC Mortgage Trust v. Fidelity Nat’l Title Ins. Co., 58 F. Supp.2d 503 (D.N.J. 1999). 

            Suits By Opposing Parties.  In general, an unsuccessful litigant cannot sue opposing counsel for a misrepresentation made in the context of the contested litigation.  Mitchell v. Chapman, 10 S.W.3d 810, 812 (Tex. App.–Dallas 2000). 

            This case also holds that an unsuccessful litigant cannot sue opposing counsel for willfully failing to produce a document.  Let us suppose that unsuccessful litigant would have prevailed, but for the lawyer’s failure to produce the document.  Let us suppose that the lawyer actually refused to produce the document, fully knowing its significance.  As a consequence, the lawyer unquestionably violated the rules of professional conduct, the discovery rules, and probably court orders.  What remedies are there against the lawyer?  How can the unsuccessful litigant achieve justice when he is deprived of it by the wilful conduct of the lawyer?  Is this kind of immunity really a good idea? 

            Malicious Prosecution.   Finally, attorneys may occasionally be named as defendants in actions for malicious prosecution based upon the attorney’s actions in filing a prior civil suit.   See, e.g., Bartal v. Brower, 993 P.2d 629 (1999) (Kan. 1999); Sheldon Appel Co. v. Albert & Oliker, 765 P.2d 498 (Cal. 1989); Toranto v. Wall, 891 S.W.2d 3 (Tex. App. –Texarkana 1994, no writ).  The elements of such a cause of action generally include that (1) a prior action was commenced by or at the direction of the defendant; (2) this action terminated in favor of the defendant in that suit; (3) there was no probable cause for the prior action; and (4) the prior action was instituted with malice.  See, e.g., Appel 765 P.2d at 501; Texas Beef Cattle Co. v. Green, 921 S.W.2d 203 (Tex. 1996).  Some states require an additional “special injury” element in order to prevail on such a claim; this element mandates some interference with person or property other than that normally attendant upon defending a lawsuit.  See, e.g., Engel v. CBS, Inc., 145 F.3d 499, 502 (2d Cir. 1998) (collecting New York opinions); O’Toole v. Franklin, 569 P.2d 561, 564 fn.3 (Or. 1977).  

            The special injury requirement is consistent with a general hesitancy by courts to allow malicious prosecution liability in all but the most extreme cases.  Many state courts make statements to the effect that this cause of action is generally disfavored.  See, e.g., Appel, 765 P.2d at 502 (collecting California cases).  Moreover, some courts follow the Restatement (Second) of Torts position that attorneys are not liable for malicious prosecution, the usual tests notwithstanding, if the attorney either has probable cause or acts “primarily for the purpose of aiding his client in obtaining a proper adjudication of his claim.”  See Bergstrom v. Noah, 974 P.2d 520, 527 (Kan. 1999).   

            Bivens Cases.  If an attorney procures a court order, and then helps carry it out, the person adversely affected by the court order may have a Bivens case against the lawyer.  “Attorneys who assist in executing a federal court order are federal agents acting under the color of authority and can be held liable in a Bivens suit.  Egervary v. Rooney, 80 F.Supp.2d 491, 498 (E.D. Pa. 2000).  (In this case, lawyers for a mother in Hungary, obtained a court order to seize a child, possibly on the basis of untruths, dealt with a seizure, and shipped the child off to Hungary.  The father sued a variety of people, including the attorneys acting for the mother.  The father had gotten no hearing.  The lawyers had proceeded under the International Child Abduction Remedies Act, 42 U.S.C. § 11601 et. seq., which is a statute implementing the Hague Convention.)

COURT REGULATION OF SUB-STANDARD ATTORNEY CONDUCT

            Court Sanctions.  Getting sanctioned by a court is not always a fate reserved only for losing counsel.  Alexander v. Local 496, 177 F.3d 394, 413-14 (6th Cir. 1999).  In Texas, paralegals may not be sanctioned under Rule 13, because they do not sign pleadings.  Moreover, sanctions under Rule 13 must specify the facts pursuant to which the sanction is being entered.  Jimenez v. Transwestern Property Co., 999 S.W.2d 125 (Tex. App.–Houston [14th Dist.] 1999, no pet.).  A lawyer can be sanctioned under Texas Rule 13 for making misrepresentations to a court in an affidavit.  This is true even if the court does not out-and-out accuse the lawyer of lying.  Keever v.  Finlan, 988 S.W.2d 300 (Tex.  App.–Dallas 1999, pet. filed).

            Lawyers can be suspended or kicked out of federal practice, without being expelled from state practice by federal courts.  Sealed Appellant 1 v. Sealed Appellee 1, 211 F.3d 252 (5th Cir. 2000).  (There was an explosion at a petroleum plant.  L obtained the assistance of “a long time employee of the petroleum manufacturer [whom the court called “the insider”] who shortly thereafter began secretly assisting [L] for money.  If the court held that the lawyer had offered a witness an improper monetary inducement.)

            Illegitimately removing a case from state to federal court can constitute a violation of Rule 11 and can lead to sanctions against both the lawyer and the client.  Wallic v. Owens-Corning Fiberglass Corp., 40 F.Supp.2d 1185 (D. Colo. 1999). 

            Rule 11 in the federal system is a very powerful weapon, but it doesn’t always work.  In one case, a police officer-client tried to dictate details to the lawyer.  As a result, the lawyer was permitted to withdraw, and there was no violation of Rule 11.  Whiting v. Lacara, 187 F.3d 317 (7th Cir. 1999).  See Florida Breckenridge, Inc. v. Solvay Pharmaceuticals, Inc., 174 F.3d 1227 (11th Cir. 1999) (appellate court raises sanction issues on its own).

            Statute-Based Attacks Upon Lawyer Performance.  Lawyers have exposure for misconduct under a variety of statutes. 

1.         RICO:  Professionals, as well as ordinary criminals acting in concert, have potential liability under this federal statute.45  The liability is both criminal46 and civil.47 

a.         Lawyers have liability both on their conduct as lawyers and their conduct as people.

(1)        Lawyer qua Lawyer: The majority of cases involve the RICO liability of attorneys who represent clients charged with fraudulent activities.48  Since the landmark Supreme Court case of Reves v. Ernst & Young,49 which held that in order to be liable an outside professional must participate in the operation or management of the affairs of the RICO enterprise, it has become harder to prove attorneys liable under RICO.50  However, where an attorney’s involvement in the enterprise rises above mere counseling, liability may arise.51

(2)        Lawyer qua Person: Of course, attorneys who embezzle client funds or otherwise systematically defraud their clients may be principally liable for running a RICO enterprise.52
b.         Plaintiffs need to be careful about bringing complex securities cases and RICO cases when the facts don’t come very close to supporting them.  Pelletier v.  Zweifel, 921 F.2d 1465 (11th Cir.  1991).

2.         Securities Laws:  Federal and State.  See Marc I. Steinberg, Corporate and Securities Malpractice (PLI 1992).  Professor Steinberg, who teaches at the Southern Methodist University School of Law, has revised sections of this book several times over the last few years and portions of it are available in a number of places.  It is a valuable compilation of cases and exposition of doctrine.  Joseph A. Grundfest, Disimplying Private Rights of Action Under the Federal Securities Law:  The Commission’s Authority, 107 Harv. L. Rev. 961 (1994).  (“Billions of dollars have changed hands in private class action lawsuits alleging securities fraud.”  Id. at 963.)

3.         28 U.S.C. § 1927.  This statute states:  “Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.”

Inherent Power Court.  Courts possess inherent power to regulate the conduct of lawyers, and this includes the power to administer sanctions.  See In re Bennett, 960 S.W.2d 35, 40 (Tex. 1997).

            Combinations.  Sometimes, it is not clear why sanctions are being applied, i.e., what the legal basis is.  Sometimes it is clear that they are justified under any one of several bases, or some combination thereof.  Cleveland Hair Clinic, Inc. v. Puig, 200 F.3d 1063, 1068 (7th Cir. 2000).  In this case, the lawyer defied a court order, sulked, and possibly engaged with his clients in underhanded conduct, after he failed to address the court in any candor.  He got slapped with a huge sanction, any objection to which he waived, because he sulked at the sidelines instead of enforcing an evidentiary hearing.  Id. at 1066.  This case is not only a vivid cautionary tail, it contains a number of amusing balding jokes.)

            Exposure of In-House Counsel.  Business entities seldom sue in-house counsel. There are significant exceptions: 

1.         after a takeover,

2.         during receivership, FDIC v. O’Melveny & Meyers, 61 F.3d 17 (9th Cir. 1995),
3.         by the bankruptcy trustee,

4.         in-house counsel is wealthy (or has received huge stock bonuses), and/or

5.         there is malpractice insurance.  (Could the existence of malpractice insurance encourage lawsuits?)

            Sometimes, a lawyer who is in-house at a corporation might represent others.  In Texas, the other entity must be a client, but this representation can happen through pro bono activity, multiple representations (whether accidental or mandated) or  moonlighting (whether forbidden, permitted, or mandated).  Palmer v. Westmeyer, of 549 N.E.2d 1202 (Ohio App. 1998).  (In this case, in-house counsel for an investment company defended an officer of another company, precipitating  a malpractice action.  Not much came of it).

1.         This cannot be done in Texas, as already indicated.  Zuniga v. Groce, Locke & Hebdon, 878 S.W.2d 313, 316 (Tex. App.–San Antonio 1994, writ ref’d). The Texas rule is the majority rule.  However, a few jurisdictions do not subscribe to that rule.  See Richter v. Analex Corp., 940 F. Supp. 353, 357-58 (D.D.C. 1996).  See above.

2.         This rule does not hold in all other jurisdictions.53

3.         There are also choice-of-law problems.  Probably, if a state holds the assignment of legal malpractice claims to be contrary to public policy, it will apply its own law.

            Courts and juries bend over backwards to protect lawyers from multiple representations.  Some of the decisions are even a little implausible.  The following two cases involve outside counsel, but they could easily have involved inside counsel.

            1.         Courts:  Wagoner v. Snow, Becker, Kroll, Klaris & Kraus, 991 F.2d 1501 (9th Cir. 1993) (advice from corporate attorney to senior officer regarding preferred stock).

2.         Jury:  Innes v. Howell Corp., 76 F.3d 702 (6th Cir. 1996) (corporate counsel not lawyer for corporate officer).

            Legal Theory:  Inside corporate counsel can be sued for anything for which outside counsel could be sued.  Typical areas include late filings, poor black-white/up-down advice, and document errors.  Inside counsel have all the protections that outside counsel have.  Judgment errors are not actionable.  Bad advice in highly complex areas is seldom subject to malpractice.  See Donald C. Langevoort and Robert K. Rasmussen, Skewing the Results:  The Role of Lawyers in Transmitting Legal Rules, 5 S. Cal. Interdisciplinary L. J. 375 (1997).  (“Hopefully we have demonstrated that (a) business lawyers have multiple incentives to overstate risks, (b) institutional mechanisms are unlikely to ameliorate these incentives completely, and (c) a host of social and psychological influences create a plausibility structure that allows individual lawyers to avoid feeling disloyal in so doing.  In other words, the climatic conditions are right for overstatement to break out with predictable frequency.”  Id. at 436.)

a.         Plaintiff must prove causation.

b.         Attorney errors may be subject to arbitration, given an appropriate agreement.  Adelman v. Marek, 1992 W.L. 131715 (S.D.N.Y. 1992).

            Federal courts can sanction lawyers for lying and for making frivolous arguments under 28 U.S.C. 1927, which prohibits lawyers from proliferating litigation needlessly.

            Attorneys appearing before courts are probably not entitled to as many due process protections as they are entitled to in the grievance system.  In the case just discussed, lawyers in grievance proceedings are not entitled to as elaborate and extensive series of due process protections as criminal defendants are.  In one case, after studying the record, a trial court sanctions two lawyers for their conduct.  The lawyers were given notice of these sanctions, but “they were not allowed at that time to offer explanations for their conduct.  However, [the lawyers, who were also the] appellants[,] subsequently filed a motion for reconsideration of the sanctions in support of their motion, with arguments, affidavits, and other exhibits.  [T]he [j]udge. . .considered appellants as arguments and modified his original order accordingly.  Thus, appellants were given the opportunity to fully brief the issue, to respond to the court’s findings, and to demonstrate that their conduct was not undertaken in bad faith.  Where, as here, the judge witnessed appellants’ sanctionable conduct, discussed appellants’ justifications for violating a court order during two contempt proceedings, and considered their written explanations for misconduct, a separate hearing was not required.”  Id. at 1120.


                37 See Charles Fried, The Lawyer as Friend:  Moral Foundations of the Lawyer-Client Relation, Yale L.J. 85 (1975).  This essay has been reprinted a number of times and it is summarized in Chapter 7 of Charles Fried, Right and Wrong 179ff (1978).  See Michael Davis and Frederick Elliston, Ethics and the Legal Profession 132-57 (1986).

                38 For a helpful manual on these matters, see American Bar Association, Section of Business Law, Committee on Law Firms, Documenting the Attorney-Client Relationship:  Law Firm Policies on Engagement, Termination, and Declination (1999).  (Approximately half of this short study consists of forms, and it contains a helpful diskette.)

                39 Manchester v. Kentucky Bar Ass’n, 34 S.W.3d 808 (Ky. 2001) (public reprimand), In re Strait, 540 S.E.2d 460 (S.C. 2000).  In re McGee, 540 S.E.2d 607 (Ga. 2001) (lawyer disbarred after a pattern of doing nothing for several clients).  In re Shibley, 522 S.E.2d 812 (S.C. 1999); In re Dennis, 991 P.2d 394 (Kan. 1999). Ky. Bar Ass. v. Zimmerman, 11 S.W.3d 47, 2000 WL 217714 (Ky. 2000); Florida Bar v. Williams, 2000 WL 218146 (Fla. 2000); Okla. Bar Assoc. v. Hopkins, 995 P.2d 1153 (Okla. 2000); In re Williams, 527 S.E.2d 541 (Ga. 2000); In re Peckham, 606 N.W.2d 170 (Wis. 2000); In re Gilbert, 748 So.2d 427 (La. 1999); In re Righter, 992 P.2d 1147 (Colo. 1999); Iowa Supreme Court Bd. of Prof’l Ethics and Conduct v. Erbes, 604 N.W.2d 656 (Iowa 2000); Iowa Supreme Court Bd. of Pfor’l Ethics and Conduct v. Lemonski, 606 N.W.2d 11 (Iowa 2000); In re Baehr, 605 N.W.2d 523 (Wis. 2000); Columbus Bar Assoc. v. Reed, 723 N.E.2d 568 (Ohio 2000); In re Nichols, 752 So.2d 153, 2000 WL 166056 (La. 2000); Attorney Grievance Comm’n of MD v. Tolar, 745 A.2d 1045 (Md. 2000); Ky. Bar Assoc. v. Stevenson, 19 S.W.3d 112 (Ky. 2000).  See Office of Disciplinary Counsel v. Dahling, 737 N.E.2d 25 (Ohio 2001) (lawyer failed to file bankruptcy cases or return retainers more than 30 clients and was permanently disbarred).  Toledo Bar Ass’n v.  Peters, 721 N.E.2d 26 (Ohio 1999); see In re Razo, 720 N.E.2d 719 (Ind.  1999) (pattern of neglect warranted a three-year suspension with stringent conditions for readmission); In re Powers, 744 So.2d 1275 (La. 1999) (neglect also warranted three-year suspension); In re Lowe, 522 S.E.2d 652 (Ga. 1999) (pattern of client abandonment, coupled with failure to refund client fees, justified disbarment); In re Samsky, 522 S.E.2d 653 (Ga. 1999) (disbarment proper for attorney who twice failed to file divorce papers after accepting fees from clients).  A Lesson Even the Dumbest Lawyer Draw From the Many Many Cases Cited in Support of the Maxim:  “For Heaven’s Sakes, Act Promptly!”

                40 Bamberger v. Kentucky Bar Ass’n, 36 S.W.3d 758 (Ky. 2001).   In re Taylor, 770 So.2d 335 (La. 2000).  Neglect when combined with a failure to communicate with a client is also highly problematic.  If a lawyer willfully abandons a matter that is even worse yet.  In re Childers, 540  S.E.2d 606 (Ga. 2001); In re O’Day, 539 S.E.2d 390 (S.C. 2000), and In re Rollins-Woods, 539 S.E.2d 60 (S.C. 2000).

                41 Michael L. Wald, Of Malpractice, Ethics, and the “Simple” Will, 63 Tex. B. J. 534 (2000).

                42  It should not come as any great surprise that the ACTEC Commentaries are completely contemptuous of this decision.  ACTEC-6.  For a comprehensive account of the Texas law of legal malpractice, see David Beck, Legal Malpractice  In Texas (Second Edition), 50 Baylor L.  Rev. 547 (1998).  Charles Herring, Texas Legal Malpractice & Lawyer Discipline (2d Ed. 1998).  See also Ronald Mallen and Jeffrey M. Smith, Legal Malpractice (4th Ed. 1996) (an authoritative, oft-cited four-volume affair covering all states).  Obviously, other states have rich jurisprudences of malpractice.  See Seibert v. Nusbaum, Stein, Goldstein, Bronstein & Compeaux, P.A., 167 F.3d 166 (3d Cir. 1999) (malpractice for unauthorized settlement); Arena Football League, Inc. v. Roemer, 9 F.Supp.2d 889 (N.D. Ill. 1998) (professional indoor football league sued its outside general counsel for malpractice and breach of fiduciary duties in connection with procuring workers’ compensation insurance).  See also Ray Ryder Anderson & Walter W. Steele, Jr., Fiduciary Duty, Tort and Contract:  A Primer on the Legal Malpractice Puzzle, 47 SMU L. Rev. 235 (1994).

                43 Suppose the government offers C a deal through L, C’s lawyer:  one year in exchange for a guilty plea to one count.  Suppose L does not tell C about the offer.  Suppose C goes to trial and receives ten years on three separate counts.  Suppose further that it is demonstrable that C would have pled guilty had L told C about the offer.  It seems to me that L may have been negligent and has proximately caused C to suffer.  But what has C suffered?  Deserved confinement?  Loss of income?  In many states, negligence actions will not lie for economic losses only.  Still, the rule in Peeler seems wrong.  Nevertheless, other jurisdictions follow it.  Rodriguez v. Nielsen, 609 N.W.2d 368 (Neb. 2000).

                44 See also Edson McClellan, The Assignability of the Proceeds of a Claim for Legal Malpractice, 31 U. West. Los Angeles L. Rev.45 (2000).

                45 18 U.S.C. § 1962(c) provides that “[i]t shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt.”

                46  18 U.S.C. § 1963.

                47  18 U.S.C. § 1964.

                48 United States v. Frega, 179 F.3d 793 (9th Cir. 1999); Handeen v. LeMaire, 112 F.3d 1339 (8th Cir. 1997); Edmondson & Gallagher v. Alban Towers Tenants Association, 48 F.3d 1260 (D.C. Cir. 1995); McDonald v. Schencker, 18 F.3d 491 (7th Cir. 1994); Baumer v. Pachl, 8 F.3d 1341 (9th Cir. 1993); Weil v. Long Island Savings Bank, 77 F.Supp.2d 313 (E.D.N.Y. 1999); Madanes v. Madanes, 981 F.Supp. 241 (S.D.N.Y. 1997); Congregacion de la Mision Provincia de Venezuela v. Curi, 978 F.Supp. 435 (E.D.N.Y. 1997); Turkish v. Kasenetz, 964 F.Supp. 689 (E.D.N.Y. 1997); Mason Tenders District Council Pension Fund v. Messera, 958 F.Supp. 869 (S.D.N.Y. 1997); BCCI Holdings (Luxembourg) S.A. v. Clifford, 964 F.Supp. 468 (D.D.C. 1997); In re American Honda Motor Co., Inc. Dealerships Relations Litigation, 941 F.Supp. 528 (D.Md. 1996); Krehling v. Baron, 900 F.Supp. 1574 (M.D.Fla. 1995); D’Orange v. Feely, 877 F.Supp. 152 (S.D.N.Y. 1995); Mathon v. Marine Midland Bank, N.A., 875 F.Supp. 986 (E.D.N.Y. 1995); Streck v. Peters, 855 F.Supp. 1156 (D.Hawai’i 1994); Crowe v. Smith, 848 F.Supp. 1258 (W.D.La. 1994); Niccum v. Meyer, 171 B.R. 828 (N.D.Ill. 1994); Morin v. Trupin, 835 F.Supp. 126 (S.D.N.Y. 1993); In re Cascade Int’l Securities Litigation, 840 F.Supp. 1558 (S.D.Fla. 1993); Biofeedtrac, Inc. v. Kolinor Optical Enterprises & Consultants, S.R.L., 832 F.Supp. 585 (E.D.N.Y. 1993); Yoder Grain, Inc. v. Antalis, 722 N.E.2d 840 (Ind.App. 2000); Siragusa v. Brown, 971 P.2d 801 (Nev. 1999).
                49 507 U.S. 170 (1993).

                50 Generally, an attorney’s provision of legal services does not constitute “operation or management” of the alleged enterprise as required by 18 U.S.C. 1962(c).  Turkish v. Kasenetz, 964 F.Supp. 689, 694 (E.D.N.Y. 1997).  “This is true even where an attorney’s advice facilitates a client’s fraudulent scheme or assists in its concealment.”  Id. “But where a lawyer’s actions are unrelated to representation of a client or demonstrate a direct and independent role in the affairs of the enterprise, such attorney may be held liable under RICO.  Id.

                51 Liability may arise where a lawyer advises the client on how to carry out a scheme without detection, Biofeedtrac v. Kolinor Optical Enterprises, 832 F.Supp. 585, 589 (E.D.N.Y. 1993); where a lawyer mails fraudulent letters, Crowe v. Smith, 848 F.Supp. 1258,  1264 (W.D.La. 1994), but see D’Orange v. Feely, 877 F.Supp. 152, 156 (S.D.N.Y. 1995)(holding that attorney’s mailing of client’s fraudulent letters cannot be considered predicate acts because they constitute legitimate conduct of attorneys acting on behalf of client in course of pending litigation); and where the attorney sits on the board of directors for the RICO enterprise and oversees fraudulent activities, In re American Honda Motor Co., Inc. Dealerships Relations Litigation, 941 F.Supp. 528, 560 (D.Md. 1996)(holding sufficient pleadings which allege attorneys’ direct management role as paid directors).

                52 See, e.g., D’Orange v. Feely, 894 F.Supp. 159 (S.D.N.Y. 1995)(assessing RICO civil damages against attorney who embezzled funds client entrusted to him pursuant to power of attorney and as executor of estate), and Thomas v. Ross & Hardies, 9 F.Supp.2d 547 (D.Md. 1998)(holding sufficient to state RICO claim allegations that attorney persuaded homeowners to buy into fraudulent mortgage scheme, and holding that law partnership may be liable under RICO for partner’s actions within the scope of corporate representation).

                53 Stanley Pietrusiak, Jr., Changing the Nature of Corporate Representation:  Attorney Liability for Aiding and Abetting the Breach of Fiduciary Duty, 28 St. Mary’s L. J. 213 (1966).  See Donald C. Langevoort, Where Were the Lawyers?  A Behavioral Inquiry Into Lawyers’ Responsibility for Clients’ Fraud, 46 Vand. L. Rev. 75 (1993).