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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Texas Legal Ethics

I. CLIENT-LAWYER RELATIONSHIP

1.1   Rule 1.1 Competence

1.1:100   Comparative Analysis of Texas Rule

Primary Texas References: TX Rule 1.01
Background References: ABA Model Rule 1.1, Other Jurisdictions
Commentary:

1.1:101      Model Rule Comparison

A. Texas Disciplinary Rule of Professional Conduct 1.01

Rule 1.01 of the Texas Rules provides the standard for lawyer competence and diligence.

Specifically, Texas Rule 1.01 provides that:

(a) A lawyer shall not accept or continue employment in a legal matter which the lawyer knows or should know is beyond the lawyer's competence, unless:

(1) another lawyer who is competent to handle the matter is, with the prior informed consent of the client, associated in the matter; or

(2) the advice or assistance of the lawyer is reasonably required in an emergency and the lawyer limits the advice and assistance to that which is reasonably necessary in the circumstances.

(b) in representing a client, a lawyer shall not:

(1) neglect a legal matter entrusted to the lawyer; or

(2) frequently fail to carry out completely the obligations that the lawyer owes to a client or clients.

(c) As used in this Rule, "neglect" signifies inattentiveness involving a conscious disregard for the responsibilities owed to a client or clients.

Texas Rules Rule 1.01 (emphasis added).

Generally, Texas Rule 1.01(a) provides that the lawyer should not accept a representation if she knows or should know that the matter is beyond her competence level, unless the lawyer associates competent counsel or the representation is of a limited, emergency nature. Relevant factors affecting this issue include: the relative complexity and specialized nature of the matter, the lawyer's general experience in the field in question, the preparation and study that the lawyer will be able to give the matter, and whether it is feasible to either refer to matter to, or associate, a lawyer of established competence in the field in question. See Texas Rules Rule 1.01 cmt. 2. Although expertise in a specific area of law may be useful in some circumstances, the appropriate proficiency level in many instances is that of a general practitioner. Texas Rules Rule 1.01 cmt. 3. A newly admitted lawyer can be as competent in some matters as a practitioner with years of experience. Id.

Texas Rule 1.01(b) prohibits the neglect of legal matters and the frequent failure to completely carry out the lawyer's obligations to the client. As such, the lawyer should act with competence, commitment, and dedication to the client's interests. Texas Rules Rule 1.01 cmt. 6. The lawyer's workload should be controlled so that each matter can be handled with the requisite competence and diligence. Id. The lawyer's duty is to pursue each matter with reasonable diligence and promptness, despite opposition, obstruction, or personal inconvenience to the lawyer. Id. Therefore, the lawyer should not procrastinate tasks involved in the representation of the client. Texas Rules Rule 1.01 cmt. 7. Under Texas Rule 1.01(b), if the lawyer acts in good faith, she is not subject to discipline for an isolated inadvertent or unskilled act or omission, tactical error, or error of judgment. Id. The lawyer also has a duty to communicate reasonably with the client. Id.

B. ABA Model Rule of Professional Conduct 1.1

ABA Model Rule of Professional Conduct 1.1 ("Model Rule 1.1") provides that the lawyer "shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." Model Rules Rule 1.1 (emphasis added).

Although the language of Model Rule 1.1 differs from that of Texas Rule 1.01, the lawyer's duties under both rules are generally consistent. For instance, the comments to Model Rule 1.1 mirror the text of Texas Rule 1.01 in that they provide for both (1) representation in emergency situations, and (2) the association of a lawyer with established competence in the field in question. Model Rules Rule 1.1 cmts. 2-3. In addition, the factors set out in the comments to Model Rule 1.1 to determine competence to accept representation in a particular matter are nearly identical to the factors enumerated in Texas Rule 1.01. See Model Rules Rule 1.1 cmt. 1; Texas Rules Rule 1.01 cmt. 2.

In summary, the competency provisions of Texas Rule 1.01 are in many ways very similar to the language of Model Rule 1.1.

1.1:102      Model Code Comparison

Compared to Texas Rule 1.01 and Model Rule 1.1, Disciplinary Rule 6-101(A) of Canon 6 ("DR 6-101(A)") of the ABA's Model Code of Professional Responsibility provided a more general, less particularized guide to the issue of the lawyer's competence. For instance, DR 6-101(A)(1) provided generally that the lawyer "shall not handle a legal matter which he knows or should know that he is not competent to handle, without associating himself with a lawyer who is competent to handle it." DR 6-101(A)(2) required "preparation adequate in the circumstances." In short, the elements of competence are more completely or explicitly addressed in Texas Rule 1.01 and Model Rule 1.1.

Finally, DR 6-101(A)(3) prohibited the "[n]eglect of a legal matter," whereas Model Rule 1.1 does not use that phraseology. The language of DR 6-101(A)(3) is somewhat analogous to the provisions of Texas Rule 1.01(b)-(c), which include specific prohibitions regarding the lawyer's neglect and failure to fulfill obligations to the client.

1.1:200   Disciplinary Standard of Competence

Primary Texas References: TX Rule 1.01
Background References: ABA Model Rule 1.1, Other Jurisdictions
Commentary: ABA/BNA § 31:201, ALI-LGL § 28, Wolfram § 5.1

Paragraph (a) of Texas Rule 1.01, "Competent and Diligent Representation," provides in full as follows:

(a) A lawyer shall not accept or continue employment in a legal matter which the lawyer knows or should know is beyond the lawyer's competence, unless:

(1) another lawyer who is competent to handle the matter is, with the prior informed consent of the client, associated in the matter; or

(2) the advice or assistance of the lawyer is reasonably required in an emergency and the lawyer limits the advice and assistance to that which is reasonably necessary in the circumstances.

Texas Rules Rule 1.01(a).

Comment 1 to the Texas Rule elaborates:

A lawyer generally should not accept or continue employment in any area of the law in which the lawyer is not and will not be prepared to render competent legal services. "Competence" is defined in Terminology as possession of the legal knowledge, skill, and training reasonably necessary for the representation. Competent representation contemplates appropriate application by the lawyer of that legal knowledge, skill and training, reasonable thoroughness in the study and analysis of the law and facts, and reasonable attentiveness tot he responsibilities owed to the client.

Texas Rules Rule 1.01 cmt. 1.

Comment 2 further observes:

In determining whether a matter is beyond a lawyer's competence, relevant factors include the relative complexity and specialized nature of the matter, the lawyer's general experience in the field in question, the preparation and study the lawyer will be able to give the matter, and whether it is feasible either to refer the matter to or associate a lawyer of established competence in the field in question. The required attention and preparation are determined in part by what is at stake; major litigation and complex transactions ordinarily require more elaborate treatment than matters of lesser consequences.

Texas Rules Rule 1.01 cmt. 2.

Further elaboration on competence issues is set forth in comments 3 through 8. For further discussion, see Texas Rule 1.01 cmts. 3-8.

1.1:300   Malpractice Liability

Primary Texas References: TX Rule 1.01
Background References: ABA Model Rule 1.1, Other Jurisdictions
Commentary: ABA/BNA § 301:1, ALI-LGL § 71-76 , Wolfram § 5.6

For discussion of selected matters in Texas regarding malpractice liability, see the immediately following sections.

1.1:310      Relevance of Ethics Codes in Malpractice Actions

The Texas Rules make clear in "Preamble: Scope" that the rules "do not undertake to define standards of civil liability of lawyers for professional conduct. Violation of a rule does not give rise to a private cause of action nor does it create any presumption that a legal duty to a client has been breached." The preamble continues:

Likewise, these rules are not designed to be standards for procedural decisions. Furthermore, the purpose of these rules can be abused when they are invoked by opposing parties as procedural weapons. The fact that a rule is a just basis for a lawyer's self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the rule."

"Accordingly," the preamble continues by observing that "nothing in the rules should be deemed to augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating such a duty." Texas Rules Preamble: Scope ¶ 15. Moreover, the Texas Rules "are not intended to govern or affect judicial application of either the attorney-client or work product privilege." Texas Rules Preamble: Scope ¶ 16. "The fact that in exceptional situations the lawyer under the Rules has a limited discretion to disclose a client confidence does not vitiate the proposition that, as a general matter, the client has a reasonable expectation that information relating to the client will not be voluntarily disclosed and that disclosure of such information may be judicially compelled only in accordance with recognized exceptions to the attorney-client and work product privileges." Texas Rules Preamble: Scope ¶ 16.

1.1:320      Duty to Client

A lawyer has a general duty to represent a client competently. At the risk of oversimplification, a malpractice plaintiff generally must establish the following to recover against a lawyer (subject to any valid defenses the lawyer may have): (1) There is a duty owed to plaintiff by the defendant, (2) a breach of that duty, (3) that proximately caused the plaintiff injury, (4) resulting in damages. Cosgrove v. Grimes, 774 S.W.2d 662 (Tex. 1989). The attorney-client relationship is fiduciary in nature. Peeler v. Hughes & Luce, 909 S.W.2d 494 (Tex. 1995); Willis v. Maverick, 760 S.W.2d 642 (Tex. 1988).

1.1:330      Standard of Care

A lawyer is held to the standard of care that would be exercised by a reasonably prudent attorney in the same position. Cosgrove v. Grimes, 774 S.W.2d 662 (Tex. 1989).

1.1:335      Requirement of Expert Testimony

Expert testimony is generally required in legal malpractice cases to establish that the defendant lawyer violated the applicable standard of care. The thought is that the law is a learned profession, and generally only another qualified lawyer can pass upon the question of whether a challenged lawyer violated the standard of care in providing legal services. E.g., Geiserman v. MacDonald, 893 F.2d 787, 793 (5th Cir. 1990). It is sometimes suggested that if the malpractice is sufficiently obvious, expert testimony may not be required. Cf. Geiserman, 893 F.2d at 793.

1.1:340      Causation and Damages

A legal malpractice plaintiff must prove that the lawyer's breach of duty "proximately caused the plaintiff injury and that damages occurred." Cosgrove v. Grimes, 774 S.W.2d 662, 665 (Tex. 1989). This entails a cause-in-fact requirement: "[T]he burden of proof is on the client to prove that his suit would have been successful but for the negligence of his attorney, and to show what amount would have been collectible had he recovered judgement." Gibson v. Johnson, 414 S.W.2d 235, 238-39 (Tex. Civ. App.—Tyler 1967, writ ref'd n.r.e.), cert denied, 390 U.S. 946 (1968).

1.1:350      Waiver of Prospective Liability [see 1.8:910]

Paragraph (g) of Texas Rule 1.08 provides in full:

A lawyer shall not make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless permitted by law and the client is independently represented in making the agreement, or settle a claim for such liability with an unrepresented client or former client without first advising that person in writing that independent representation is appropriate in connection therewith.

Texas Rules Rule 1.08(g).

1.1:360      Settlement of Client's Malpractice Claim [see 1.8:920]

Paragraph (g) of Texas Rule 1.08 provides in full:

A lawyer shall not make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless permitted by law and the client is independently represented in making the agreement, or settle a claim for such liability with an unrepresented client or former client without first advising that person in writing that independent representation is appropriate in connection therewith.

Texas Rules Rule 1.08(g).

1.1:370      Defenses to Malpractice Claim

Defenses or other arguments against legal malpractice liability include the statute of limitations, lack of privity, non-assignability, release, res judicata, collateral estoppel, comparative negligence, the one-satisfaction rule, and the underlying claim defense. Also, a malpractice plaintiff cannot recover if an essential element (e.g., causation) of the claim is missing.

The statute of limitations for legal malpractice in Texas in two years. Thus, a client's legal malpractice claim typically will be barred unless suit is brought within two years after the cause of action accrued. Willis v. Maverick, 760 S.W.2d 642, 644 (Tex. 1988). One Texas court has stated that a cause of action "accrues" and the statute of limitations clock begins ticking "when the plaintiff first becomes entitled to sue the defendant based upon a legal wrong attributed to the latter." Zidell v. Bird, 692 S.W.2d 550, 554 (Tex. App.—Austin 1985, no writ). If a malpractice plaintiff sufficiently pleads and establishes the availability of the "discovery rule," the statute of limitations will "not begin to run until the claimant discovers or should have discovered through the exercise of reasonable care and diligence the facts establishing the elements of his cause of action." Willis v. Maverick, 760 S.W.2d at 646.

As discussed in sections 1.1:410 and 1.1:420, lack of privity—lack of an attorney-client relationship—is a defense to a legal malpractice claim. Additionally, a rule of non-assignability applies to legal malpractice claims. E.g., Zuniga v. Groce Locke & Hebdon, 878 S.W.2d 313 (Tex. App.—San Antonio 1994, writ ref'd).

If a client has released a malpractice claim against a lawyer, the defense of release can bar the client from subsequently prosecuting the alleged malpractice claim. Releases of malpractice claims and waivers of prospective malpractice claims are further addressed in sections 1.1:350 and 1.1:360, respectively.

To oversimplify somewhat, res judicata doctrine says that a final judgment is conclusive as to the rights of the parties and their privies, and constitutes as to them an absolute bar to a subsequent action involving the same cause of action, demand, or claims asserted or that through diligence might have been asserted; the doctrine of collateral estoppel says that when an issue of fact has been determined by a valid judgement, that issue cannot be litigated again between the same parties in a future lawsuit. These doctrines can apply in legal malpractice cases. E.g., CLS Assocs. v. A___ B___, 762 S.W.2d 221 (Tex. App.—Dallas 1988, no writ); Howell v. Witts, 424 S.W.2d 19 (Tex. Civ. App.— Dallas 1967, writ ref'd n.r.e.).

Comparative negligence also is a potential defense to a negligence claim. See generally Texas Civil Practice and Remedies Code, Chapter 33 ("Proportionate Responsibility").

The one-satisfaction rule provides that a plaintiff is entitled to only one satisfaction for sustained injuries. E.g., Firemans Fund Am. Ins. Co. v. Patterson & Lamberty, Inc., 528 S.W.2d 67 (Tex. Civ. App.—Tyler 1975, writ ref'd n.r.e.) (affirming summary judgement for lawyer; client insurer had obtained a judgment from another party for its losses which had been paid in full).

The underlying claim "defense" (actually a part of the essential element of causation) posits that the malpractice plaintiff is not entitled to recovery against the lawyer-defendant if the plaintiff could not have prevailed in the underlying proceeding even if the challenged lawyer had not made the alleged mistake in the underlying proceeding. For further discussion of this, see section 1.1:340.

1.1:380      Liability to Client for Breach of Contract, Breach of Fiduciary Duty, and Other Liabilities

Aside from pure legal malpractice, the principal other theories client-plaintiffs sometimes try to pursue in Texas against their lawyers are alleged breach of fiduciary duty (e.g., Barnes v. McCarthy, 132 S.W. 85 (Tex. Civ. App. 1910, no writ)), and the Texas Deceptive Trade Practices Act (e.g., Latham v. Castillo, 972 S.W.2d 66 (Tex. 1998)).

1.1:390      Liability When Non-Lawyer Would Be Liable

[The discussion of this topic has not yet been written.]

1.1:400   Liability to Certain Non-Clients

Primary Texas References: TX Rule 1.01
Background References: ABA Model Rule 1.1, Other Jurisdictions
Commentary: ABA/BNA § 71:1101, ALI-LGL § 73, Wolfram § 5.6

For a discussion of this subject, see sections 1.1:410 and immediately following sections .

1.1:410      Duty of Care to Certain Non-Clients

The general liability rule in Texas in this context, and the rule historically, has been one of privity. As one Texas court observed, for instance, "Texas courts have generally recognized that a non-client has no cause of action against an attorney for negligent performance of legal work. This is based upon a lack of privity[.]" Similarly, in Dickey v. Jansen, 731 S.W.2d 581, 584 (Tex. App.—Houston [1st District] 1987, writ ref'd n.r.e.), testamentary trust beneficiaries brought a negligence action against the testator's attorneys. The plaintiffs contended that the lawyers negligently prepared a will that created an invalid trust under Louisiana law. The trial court granted summary judgment in favor of the attorney and law firm, and the court of appeals affirmed this judgment. In First Municipal Leasing Corp. v. Blankenship, Potts, Aikman, Hagin & Stewart, 648 S.W.2d 410, 413 (Tex. App.—Dallas 1983, writ ref'd n.r.e.), the court held that a third party buyer was properly denied recovery because it was not in privity of contract with the seller's attorney regarding an opinion of the buyer and seller's contract.

More recently, the Texas Supreme Court has again reaffirmed the rule of privity. In Huie v. DeShazo, 922 S.W.2d 920 (Tex. 1996), the Texas Supreme Court upheld the privity rule in the context of a evidentiary privilege dispute. The court's logic affirming privity does not, however, appear to be limited to the evidentiary context. See id. at 921-22. Similarly, in Barcelo v. Elliot, 923 S.W.2d 575 (Tex. 1996), the Texas Supreme Court upheld the privity rule, deciding that a lawyer who represents only the testator in preparing estate planning documents owes no duty to the beneficiaries of the estate plan. The court observed in pertinent part: "We believe the greater good is served by preserving a bright-line privity rule which denies a cause of action to all beneficiaries whom the attorney did not represent." Id. at 578.

1.1:420      Reliance on Lawyer's Opinion [see also 2.3:300]

Please see the discussion of Texas cases under 1.1:410, "Duty of Care to Certain Non-Clients." Federal decisions applying Texas law also have recognized and enforced the Texas rule of privity. Randolph v. Resolution Trust Corp., 995 F.2d 611 (5th Cir. 1993), cert. denied, 510 U.S. 1191 (1994), is illustrative:

We also reject the Five Investors' argument that they may sue for legal malpractice even if there was no attorney-client relationship because the Firm knew that Beeson would supply the Five Investors with information. The argument has no merit. Texas courts repeatedly have held that only one in privity of contract with an attorney may maintain a legal malpractice action against him.

Id. at 616; see also F.D.I.C. v. Howse, 802 F. Supp. 1554, 1563 (S.D. Tex. 1992).

Likewise, the court in Marshall v. Quinn-L Equities, Inc., 704 F. Supp. 1384 (N.D. Tex. 1988) observed:

Under Texas law, persons outside the attorney-client relationship have no cause of action for injuries they might sustain due to the attorney's failure to perform a duty owed to his client. This is true even under circumstances where the attorney renders an opinion to his client on which he knows a third party will rely.

Id. at 1394-95 (citations omitted). To similar effect is Banc One Capital Partners Corp. v. Kneipper, 67 F.3d 1187 (5th Cir. 1995).

1.1:430      Assisting Unlawful Conduct [see also 1.2:600-1.2:630]

The Texas Rules provide that a "lawyer shall not assist or counsel a client to engage in conduct that the lawyer knows is criminal or fraudulent. A lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel and represent a client in connection with the making of a good faith effort to determine the validity, scope, meaning or application of the law." Texas Rules Rule 1.02(c). As noted at 1.1:310, "Relevance of Ethics Codes Malpractice Actions," the Texas Rules explicitly provide that the violation of a rule does not, without more, give rise to civil liability.

In Bernstein v. Portland Savings and Loan Ass'n, 850 S.W.2d 694 (Tex. App.— Corpus Christi 1993, writ denied), one of the Texas intermediate appellate courts considered some of the circumstances under which a lawyer representing a client might be charged with fraud. The court emphasized that a lawyer has a general duty to maintain a client's confidences, and generally (subject to some exceptions) does not have a duty of disclosure to other persons. The court deemed this significant, since a person (including a lawyer) generally cannot be charged with fraud for failing to speak unless the person has a duty to speak. The court distinguished between the lawyer and the client: the fact that the client may have a duty to speak to avoid civil liability for fraud does not in and of itself impose a corresponding duty on the lawyer. The court held that "the law does not require an attorney to reveal information about a client to a third party when that client is perpetrating a non-violent, purely financial fraud through silence" — though the client, if truly committing fraud, certainly risks civil liability. Id. at 704. Similarly, a lawyer's act of making representations on behalf of a client does not create, according to the court, a duty for the lawyer to correct them in order to avoid fraud liability to the other party — though the client may well have a duty to correct under appropriate circumstances. Id. The court also discussed circumstances under which a lawyer who affirmatively acts in a deceitful manner for personal gain can, in the view of that court, be held liable to a party the lawyer injures. See generally id.

More recently, the Texas Supreme Court, a court superior to the Corpus Christi Court of Appeals, reaffirmed that a lawyer has a solemn obligation not to reveal privileged and other confidential client information, except as permitted or required in certain limited circumstances. Duncan v. Board of Disciplinary Appeals, 898 S.W.2d 759 (Tex. 1995). In Duncan, the Texas Supreme Court concluded that the attorney in question was not subject to compulsory discipline on the basis of a federal conviction for misprision of felony. The lawyer had not revealed to authorities certain privileged or other confidential information about his client's commission of a felony. But the lawyer did not take affirmative steps to conceal a crime. The Court noted that misprision of felony is different from: (1) perjury, which involves false testimony (rather than a refusal to testify), and (2) accessory-after-the-fact, which involves some assistance to the felon. Misprision of felony may involve a mere refusal to give any statement, and a lawyer can, according to the Court, sometimes be ethically obligated to refuse to make any statement. Id.

1.1:440      Knowledge of Client's Breach of a Fiduciary Duty [see also 1.13:520]

Texas authority addressing this specific subject is limited. For a more general discussion of potential lawyer liability, see 1.1:410 through 1.1:430.

1.1:450      Failing to Prevent Death or Bodily Injury

The Texas rule on confidentiality of information, Rule 1.05, provides that, "[w]hen a lawyer has confidential information clearly establishing that a client is likely to commit a criminal or fraudulent act that is likely to result in death or substantial bodily harm to a person, the lawyer shall reveal confidential information to the extent revelation reasonably appears necessary to prevent the client from committing the criminal or fraudulent act." Texas Rules Rule 1.05(e). As noted under 1.1:310, "Relevance of Ethics Codes to Malpractice Actions," the violation of a disciplinary rule does not, without more, give rise to civil liability for the lawyer. Rule 1.05(e) is mentioned in Berstein v. Portland Savings and Loan Ass'n, 850 S.W.2d 694 (Tex. App.—Corpus Christi 1993, writ denied), but that case did not involve a risk of death or bodily injury. See 1.1:430 for a discussion of Berstein.

1.1:500   Defenses and Exceptions to Liability

Primary Texas References: TX Rule 1.01
Background References: ABA Model Rule 1.1, Other Jurisdictions
Commentary: ABA/BNA § 301:1001, ALI-LGL §§ 76, 78, Wolfram § 5.6

Defenses to legal malpractice claims are discussed in section 1.1:370. A key defense for Texas lawyers against negligence-based claims asserted by non-clients against lawyers is the privity defense. That defense provides that a non-client cannot sue a lawyer for negligence, only a client can, because a lawyer owes a professional duty only to a client. This defense and related subjects are treated in greater depth in sections 1.1:410 and 1.1:420. As of November 23, 1998, the Texas Supreme Court has under advisement a case posing the question of whether a non-client could successfully sue a lawyer for negligent misrepresentation. A number of Texas cases had held that a non-client could not pursue such a theory, but the Texarkana Court of Appeals held to the contrary and reversed a summary judgement granted by the trial court in favor of the defendant law firm. The Texas Supreme Court has decided to review the Texarkana Court of Appeals' decision. See F.E. Appling Interests v. McCamish, Martin, Brown & Loeffler, 953 S.W.2d 405 (Tex. App. —Texarkana 1997, pet. granted) (this decision currently is under review by the Texas Supreme Court).

1.1:510      Advocate's Defamation Privilege

In Russell v. Clark, 620 S.W.2d 865, 868-69 (Tex. Civ. App. -- Dallas 1981, writ ref'd n.r.e.), the court stated: "An attorney at law is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as a part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding."

1.1:520      Wrongful Use of Civil Proceedings; Abuse of Process; False Arrest

In one case in Texas, the court observed that an attorney has no right of recovery, "under any cause of action, against another attorney arising from conduct the second attorney engaged in as a part of the discharge of his duties in representing a party in a lawsuit in which the first attorney also represented a party." Bradt v. West, 892 S.W.2d 56, 71-72 (Tex. App.—Houston [1st Dist.] 1994, writ denied) (rejecting, among other causes of action, malicious prosecution and abuse of process claims). Abuse of process and malicious prosecution claims against lawyers by former litigation adversaries generally are not favored in the law. For some illustrative examples of unsuccessful attempts to pursue such claims, see Martin v. Trevino, 578 S.W.2d 763 (Tex. Civ. App.— Corpus Christi 1978, writ ref'd n.r.e.); Baubles & Beads v. Louis Vuitton, S.A., 766 S.W.2d, 377 (Tex. App.—Texarkana 1989, no writ).

1.1:530      Assisting Client to Break a Contract

See generally sections 1.1:410 through 1.1:420.

1.1:600   Vicarious Liability [see 5.1:500]

Primary Texas References: TX Rule 1.01
Background References: ABA Model Rule 1.1, Other Jurisdictions
Commentary: ABA/BNA § 91:201, ALI-LGL § 79, Wolfram § 5.6

See section 5.1:500.

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