Texas Legal Malpractice Damages

The guiding principle behind the rule is to prevent claimants from bringing multiple claims with the right to error of law in order to circumvent limitation periods or seek alternative damages where those claims do not actually raise a new plea. The Southeast Texas Record recently reported that a Texas businessman is suing a Houston company for legal error. The lawsuit alleges that the firm was negligent in representing the client and that this negligence resulted in millions of dollars in damages. 3. «Recoverability». A plaintiff for error of law who was the plaintiff in an underlying litigation must prove both that he or she would have regained a higher judgment and that the judgment would have been recoverable against the underlying defendants. Jackson v. Urban, Coolidge, Pennington & Scott, 516 S.W.2d 948 (Tex. Civ. App. – Houston [14th Dist.] 1974, brief refused).

Although not finally decided, the prohibition on assignment also appears to extend to the assignment of the proceeds of an action in error of law, where the assignee is also given substantial control over the dispute. See Tate v. Goins, Underkofler, Crawford & Langdon, 24 p. 3d 627 (Tex. App.—Dallas 2000, Pet. denied); see also Mallios v. Baker, 11 pp. W.3d 157, 159-72 (Tex. 2000) (four judges would agree that the distribution of revenues is not valid, although the majority refused to address the issue). In Mallios v. Baker, the Texas Supreme Court ruled that an error of law defendant should not have received summary judgment based on the invalidity of a partial assignment of income because the lawyer`s client remained the correct plaintiff in the malpractice suit, whether the assignment was valid or not. When a lawyer agrees to represent a client, he or she assumes a fiduciary duty to represent the client`s interests.

If the lawyer puts his interests above the interests of the client, this act constitutes a breach of the lawyer`s fiduciary duty. If the client has reason to believe that this has happened, the lawyer may be accused of an error of law. An error of law occurs when the client suffers legal harm, which means that facts have occurred that give rise to a legal remedy. Apex Towing Co. v. Tolin, 41 p.3d 118, 120 (Tex. 2001). Nevertheless, in many cases, the limitation period is extended by one of the two toll doctrines. First, the `disclosure rule` provides that, in the event of an error of law, the limitation period begins to run only after the customer has discovered, or ought to have discovered, the facts constituting the constituent elements of a plea by exercising due diligence. Willis v. Maverick, 760 pp.2d 642, 645-46 (Tex.

1988); Apex Towing Co. v. Tolin, 41 p.. 3d pp. 120-21 (Tex. 2001). Second, if a lawyer makes an error in pursuing or defending a claim that leads to litigation, the limitation period for a malpractice claim against the attorney will be extended until all remedies against the underlying claims have been exhausted or the dispute is otherwise closed. Apex Towing Co.

v. Tolin, 41 p.w.3d at 119 (Texas 2001). A. Elements. «A malpractice lawsuit in Texas is based on negligence.» Cosgrove v Grimes, 774 pp.2d 662, 664 (Tex. 1989). Although a plaintiff may, in certain circumstances, invoke other grounds against a lawyer, it is common knowledge that a conventional claim for error of law constitutes a tort. A plaintiff in an action for error of law must therefore prove the following: 1. Actual harm.

A plaintiff who has erred in law may seek compensation for foreseeable damage caused directly by the negligent act or omission. In the context of a dispute, this is usually the amount that the customer would have received or avoided if the dispute had been properly handled. See, for example, Keck, Mahin & Cate v National Union Fire Ins. Co., 20 pp.3d 692, 703 (Tex. 2000) (damages should be calculated by comparing the amount paid to settle the case with the amount that would have been lost in a competently defended trial); Cosgrove v. Grimes, 774 pp.2d 662, 666 (Tex. 1989) (The jury should have been asked to determine the amount of damages «recoverable from Stephens if the claim had been properly pursued»). For example, if a lawyer`s conduct constituted professional negligence but also caused him to lie about the legal services he provided, such as filing the lawsuit on time, when in fact it was not filed on time, he may also have violated the DTPA`s prohibition against unscrupulous conduct, And that claim could potentially survive the anti-fracking rule. While no reported Texas decision has addressed the admissibility of disciplinary rules in a case of legal error, many states allow evidence of disciplinary rules to demonstrate the standard of due diligence. See Kathleen J. McKee, Admissibility and Effect of Evidence of Professional Ethics Rules in Legal Malpractice Action, 50 A.L.R.5th 301 (1997). There are very good arguments against admitting evidence of disciplinary rules, and it is not clear how the Texas courts will solve this problem.

However, it is generally accepted that, outside the context of an error of law, courts may have recourse to the Disciplinary Code to determine whether a contract is contrary to public policy. See Shields v. Texas Scottish Rite Hosp., 11 p.w.3d 457 (Tex. App. – Eastland 2000, pet. denied) (citing cases). Some commentators have suggested that a client should be allowed to prove causation by proving that the case had some «comparative value» that was affected by the misconduct. Texas courts have yet to adopt this concept, perhaps because proving the value of the settlement is inherently speculative.

See, e.g., Keck, Mahin & Cate v National Union Fire Ins. Co., 20 p.w.3d 692 (Tex. 2000) (to prove damages resulting from allegedly excessive settlement, plaintiff must prove that, if the case had been heard with a reasonably competent and error-free defence, the amount of the judgment would have been less than the actual settlement). 4. Assignment. It is now common knowledge that, for reasons of public policy, claims for errors of law cannot be assigned in Texas. Zuniga v. Groce, Locke & Hebdon, 878 pp.

W.2d 313, 318 (Tex. App.—San Antonio 1994, brief ref.); City of Garland v. Booth, 895 S.W.2d 766, 769 (Tex. App.—Dallas 1995, action dismissed); see also Britton v. Seale, 81 F.3d 602 (5th Cir. 1996) (Texas Law Enforcement). The prohibition of assignment applies to all claims due to legal errors, not just claims arising from legal disputes. See Britton v. Seale, 81 F.3d to 604; Vinson & Elkins v. Moran, 946 pp.2d 381, 394-96 (Tex. App.—Houston [14th Dist.] 1997, pet. dism`d by agr.); Stadt Garland v.

Stand, 895 S.W.2d bei 771. For the rest, the prohibition of assignment extends to all causes of action arising from the customer relationship, regardless of their designation, and not only to claims for negligence. See City of Garland v. Booth, 971 pp.2d 631, 634-35 (Tex. App.—Dallas 1998, pet. denied) (claims for breach of contract/refund, breach of express warranty under DTPA and lack of scruples under DTPA could not be assigned); Vinson & Elkins v. Moran, 946 S.W.2d to 396 (claims against attorneys for conspiracy, DTPA violations and «other wilful misdemeanors» could not be assigned). The American Bar Association, a group of lawyers, defines a legal error as an act performed by a lawyer that is done negligently or wrongfully and results in financial loss to the client.