130

You, Too, Can Be Sued - Part I

Chapter Seven Part I YOU, TOO, CAN BE SUED: A MALPRACTICE PRIMER

I. BEFORE THE RULES, SOME FACTS OF LIFE A. Fact of Life 1: Dont Expect Sympathy if You Screw Up things that violate the disciplinary rules just because other lawyers in your field would do the same thing. The judges and jurors in malpractice cases will be even less charitable. The jurors probably will not like you all that much, and will not be predisposed to resolve issues of credibility in your favor. But at the same time, they will not think that your conduct stemmed from ignorance, carelessness, or stupidity. This is the worst of both worlds. If the evidence allows it, not only will you be faulted for your actions, but you also will be ascribed a culpable mental state permitting awards of both compensatory and punitive damages. The consequences of the foregoing are clear. As the sergeant always told the departing police officers in Hill Street Blues, Be careful out there! C. Fact of Life 3: Lawyers Get into Trouble Because of GIN

Grievance committees, civil judges, and, most of all, jurors are not in love with lawyers. The public image of lawyers is somewhere between that of organized crime and the IRS, partly because they deal with troubled people and are a convenient foil (His/her lawyer is a shyster!). Most clients first contact with a lawyer occurs because of a ticket, a criminal charge, an illness or injury, bankruptcy, or a divorce. Consequently, your client is likely to have had no experience, or at least no beneficial experience, with the legal system, and to be distrustful of lawyers. Moreover, once the matter is resolved, distressingly few clients are satisfied with the outcome, leading to further dislike of lawyers and the institution of grievances or lawsuits concerning the lawyers representation. And, unfortunately, not all of these complaints are fanciful. The sad fact is that the level of competence is not as high as it should be. B. Fact of Life 2: You Wont be Judged by Your Peers

No, not juniper berries, although that causes trouble, too. Virtually all complaints and lawsuits derive from a lawyers perceived Greed, Ignorance, or Neglect. II. NOW, THE BASIC RULES A. Your Basic Ethical Landscape

This is a corollary to the first fact of life. On a daily basis, lawyers conduct their professional lives largely cut off from the judgment of nonlawyers. Lawyers practicing exclusively in highly specialized areas can become even more isolated by a discrete legal subculture whose rules and practices differ substantially from those of the overall lawyer population. This insularity often breeds defensiveness and self-righteousness (Nobody understands lawyers problems! and It cant be unethical; everybody does it.). Involvement with a grievance committee or malpractice jury can provide a jolting reality check. On grievance committees, at least, a majority of those judging you will be lawyers. While nobody is out to hang you, even these lawyers are not going to let you get by with doing

As an attorney, you owe anyone you represent your undivided loyalty. Loyalty has many aspects. You should be a competent and diligent advocate on your clients behalf. See Texas Disciplinary Rules of Professional Conduct Rule 1.01. (Tex. Disciplinary R. Prof. Conduct, (1989), reprinted in Tex. Govt Code Ann., tit. 2, subtit. G, app. (Vernon Supp. 1995) (State Bar Rules art. X 9)) (hereafter Rule(s) of Conduct.) You should represent your client zealously within the bounds of the law and free of compromising influences and loyalties. See Rules of Conduct 1.06, 1.08, 1.12, 1.13. You should consult with your client concerning the objectives of your representation (see Rule of Conduct 1.03) and, while offering candid advice (see Rule of Conduct 2.01), abide by your clients lawful wishes in those respects,

You, Too, Can Be Sued - Part I

131

including whether or not to accept a proposed resolution of the matter for which you have been retained. See Rules of Conduct 1.02, 3.01-3.04. Finally, and perhaps most importantly, you should zealously guard and respect your clients confidences. You should not disclose those confidences or use them in a manner adverse to the clients interests without the clients express consent (see Rule of Conduct 1.05(b)(1), (2)), nor should you disclose or use privileged client information for your own advantage or for that of another client or third person without such consent. See Rule of Conduct 1.05(b)(4). When your representation of a client is concluded, many of your obligations to that person are concluded as well. Several obligations, however, survive. One is the obligation to preserve confidential information imparted to you by your former client unless the latter consents to its disclosure (see Rule of Conduct 1.05(b)(1)), and not to use that information in a manner adverse to your former client without consent, unless the information has become generally known. See Rule of Conduct 1.05(b)(3). Yet another is not to attack the work product that you, or any member of the firm you then worked for, produced for your former client. See Rule of Conduct 1.09(a)(1). To guard against possible adverse use or disclosure of confidences as well as attacks on former work product, courts will disqualify you, other members of your firm, and the firm itself if it appears either that you are engaging in such activities or that there is a reasonable likelihood that you will do so. Rule of Conduct 1.09(a)(1)(3), (b). Somewhat different prohibitions apply to you if you join a private law firm after government service (see Rule of Conduct 1.10) or after acting as a law clerk. See Rule of Conduct 1.11. In those settings, upon giving proper notice to your (former) employer, it is possible for the firm you join to continue to represent clients that you personally could not represent, as long as you have been properly screened off from all involvement in the matter and apportioned none of the fee that it generates. See Rule of Conduct 1.10, cmt. 3; Rule of Conduct 1.11(c)(1). This possibility of curative screening also is true as you move from clerkship to clerkship prior to receiving your license. See Phoenix Founders, Inc. v. Marshall, 887 S.W.2d 831 (Tex. 1994); Grant v.

Thirteenth Court of Appeals, 888 S.W.2d 466 (Tex. 1994); In re American Home Products Corporation, 985 S.W. 2d 68 (Tex. 1998). Remember: when you change firms, your former clientsnot your new clientscontinue to have a claim on your loyalties to the extent sketched out above. Do not launch your legal career inauspiciously by getting your new firm disqualified from a major piece of litigation.
1. Attorneys Personal Liability

The traditional approach to a lawyers liability for malpractice is that you are liable for negligencethat is, failure to do that which a reasonable attorney practicing in the same locality would do, or not do, under the same or similar circumstances. See Cook v. Irion, 409 S.W.2d 475 (Tex. Civ. App.San Antonio 1966, no writ). Similarly, you are liable for actual or constructive breaches of your fiduciary duties to your client, as well as for breach of either oral or written representations in a contract. Shuttleworth v. McGee, 105 S.W. 823 (Tex. Civ. App.1970, no writ). And, of course, you and every other lawyer are always liable for such intentional torts as fraud, malicious prosecution, wrongful attachment or levy, and civil conspiracy. The traditional defenses to malpractice claims are equally settled. One of the accepted principles is that a client is the only person who can sue an attorney for malpractice; other persons who are adversely affected by a lawyers culpable conduct are not in privity and cannot bring suit. See Dickey v. Jansen, 731 S.W.2d 581 (Tex. App.Houston [1st Dist.] 1987, writ refd n.r.e.); Berry v. Dodson, Nunley & Taylor, P.C., 717 S.W.2d 716 (Tex. App.San Antonio 1986, writ dism. by agr.). There had been some doubt as to whether the supreme court would adhere to the privity doctrine in one limited class of cases: suits brought by the beneficiaries of a decedents will or trust against the attorney for the testator for malpractice in connection with the preparation or execution of those documents. The reasons those cases are troublesome is that no matter how egregious the attorneys negligence might be, under the traditional privity doctrine no one is in a position to sue. The testator generally is dead before any error is discovered; the administrator of the decedents estate cannot allege any actual

132

You, Too, Can Be Sued - Part I

damages suffered by either the testator or the estate; and the beneficiaries are not in privity with the attorney. It was for this reason that the author predicted that the supreme court probably would abolish the privity doctrine in this class of cases as it should. A GUIDE TO THE BASICS OF LAW PRACTICE 1996 ed. at 124. The court, however, did not see things that way. Instead, in Barcelo v. Elliott, 923 S.W.2d 575 (Tex. 1996), it adopted a minority position followed by only four other states (id. at 579) and held that the beneficiaries of a decedents trust could not bring a suit against the decedents attorney for negligence in drafting the trust instrument. Id. at 577. Given the outcome in Barcelo, the privity doctrine seemed to be immune from challenge for the foreseeable future. In 1999, however, the Supreme Court decided McCamish, Martin, Brown & Loeffler v. F.E. Appling Interests, 991 S.W.2d 787 (Tex. 1999). That case involved an attorney who signed a settlement agreement in which the attorney personally made certain bargained for representations to the opposing party. When those representations were later found to be false, the opposing party sued the attorney for damages on a theory of negligent misrepresentation. Id. at 789-790. Relying on earlier Texas authority, the Supreme Court concluded that Texas recognized such a tort, and that the court could perceive no reason why [that tort] should not apply to attorneys. Id at 791. The court concluded that recognizing the tort of negligent misrepresentation would not undermine the general rule that persons who are not in privity with the attorney cannot sue the attorney for legal malpractice. Id. The court explained that the tort of negligent misrepresentation is not based on the breach of duty a professional owes his or her clients or others in privity, but on an independent duty to the nonclient based on the professionals manifest awareness of the nonclients reliance on the misrepresentation and the professionals intention that the nonclient so rely. Id. At 792. A two-year statute of limitations applies to malpractice claims, with the statute beginning to run at the occurrence of the malpractice. That statute of limitations, however, is subject to tolling by the discovery rule. See Willis v. Maverick, 760 S.W.2d 642 (Tex. 1988). In cases involving litigation malpractice, it also is tolled

until all appeals involving the underlying suit are exhausted. Hughes v. Mahaney & Higgins, 821 S.W.2d 154 (Tex. 1991). Finally, an attorney may be estopped from asserting the statute by his or her own misconduct. See Clark v. Pruett, 820 S.W.2d 903 (Tex. App.Houston [1st Dist.] 1991, no writ) (applying estoppel principles to attorney who wrongfully refused to return file to client upon being discharged). Overarching this entire protective structure is the requirement that a client not only has to prove malpractice, but also must establish that a money loss resulted from the attorneys negligence. This requires the aggrieved party to show: (1) that the initial litigation, if handled properly, would have resulted in a judgment in that partys favor (the so-called suit within a suit rule); and (2) that the resulting judgment was collectable. See Jackson v. Urban, Coolidge, Pennington & Scott, 516 S.W.2d 948 (Tex. Civ. App.Houston [1st Dist.] 1974, writ refd n.r.e.). About the only break a client has under traditional doctrine is that if legal malpractice is established, the client can then recover damages for mental anguish and for exemplary damages. Montfort v. Jeter, 567 S.W.2d 498 (Tex. 1978). Further, at one time Texas law provided that a lawyer was not liable merely for an error in judgment if the lawyer acted in good faith and in the honest belief that the advice and acts were well-founded and in the best interest of the client. Cook v. Irion, supra. That aspect of the case was overruled by the Supreme Court of Texas, however, in Cosgrove v. Grimes, 774 S.W.2d 662 (Tex. 1989). Other common law causes of action are breach of fiduciary duty, civil conspiracy, and fraud. First, Texas apparently recognizes a cause of action against a lawyer for breach of fiduciary duty. (See Burrow v. Arce, 42 TEX.S.CT.J. 932 (Tex. 1999)) that survives the death of the client. See Estate of Degley v. Vega, 797 S.W.2d 299 (Tex. App.Corpus Christi 1990, no writ). The statute of limitation for this claim is two years, but is subject to tolling by the discovery rule. Estate of Degley, 797 S.W.2d at 302. You should be aware that in other jurisdictions lawyers have been held to have fiduciary obligations to nonclients. See Fassihi v. Sommers, Schwartz, Siver & Tyler, P.C., 309 N.W.2d 645 (Mich. App. 1981); Westinghouse Elec. Corp. v. Kerr-McGee Corp.,

You, Too, Can Be Sued - Part I

133

580 F.2d 1311 (7th Cir. 1978). The importance of an action for breach of fiduciary duty is shown by the recent case of Burrow v. Arce, 42 TEX.S.CT.J. 932 (Tex., No. 98-0184, July 1, 1999). Burrow involved a suit by former clients of an attorney alleging that attorney had breached his fiduciary duty to them by settling their cases on an aggregate rather than an individual basis without making appropriate disclosures to them and obtaining their consent. The Supreme Court concluded that if the plaintiffs could establish that fact, they would be entitled to damages consisting of a forfeiture of some or all of the fees they paid their attorney, without having to show that the settlements they received were unreasonable or unfair, or that they had been damaged in any way by their attorneys conduct. Id. at 937-943. The court reasoned that [an] attorneys compensation is for loyalty as well as services, and his failure to provide either impairs his right to compensation.. Id. At 939. Second, a lawyer may be found liable to a nonclient for participating in a civil conspiracy resulting in harm to that non-client. See Likover v. Sunflower Terrace II, Ltd., 696 S.W.2d 468, 472 (Tex. App.Houston [1st Dist.] 1985, no writ) (conspiracy to commit fraud and to commit economic duress); Bourland v. State, 528 S.W.2d 350, 353-57 (Tex. Civ. App.Austin 1975, writ refd n.r.e.) (fraudulent investment scheme). There is some recent authority suggesting that there is an exception to this rule when the alleged civil conspiracy involves activities undertaken on a clients behalf in litigation. See Lewis v. American Exploration Company, 4 F.Supp. 2d 673 (S.D. Tex. 1998); Taco Bell Corp. v. Cracken, 939 F.Supp. 528 (N.D. Tex. 1996); Bradt v. West, 892 S.W.2d 56 (Tex. App.Houston [1st Dist.] 1994, writ den.) For the reasons given in the next paragraph, you should be cautious in exercising this supposed privilege to further a clients unlawful activities. And third, lawyers, like other people, may not defraud anyone. See Likover, supra; Bourland, supra. The statute of limitations for such claims, however, is four years rather than two, subject to further tolling by the discovery rule. See Estate of Degley v. Vega, 797 S.W.2d 299, 303 (Tex. App.Corpus Christi 1990, no writ). The same recent authority discussing an attorneys limited exemption from civil conspiracy liability also

holds that there is an exception to this rule for fraudulent activities undertaken on a clients behalf in litigation. See Lewis v. American Exploration Company, 4 F.Supp. 2d (S.D. Tex. 1998); Taco Bell Corp. v. Cracken, 939 F.Supp. 528 (N.D. Tex. 1996); Bradt v. West, 892 S.W.2d 56 (Tex. App.Houston [1st Dist.] 1994, writ den.) (all holding that such behavior does not make the attorney engaging in that conduct liable for damages to injured opposing parties). Those authorities are careful to point out, however, that attorneys engaging in such conduct remain liable for court-imposed sanctions as well as for any disciplinary infractions they commit. See Lewis, supra, at 3 (quoting Bradt, supra, 892 S.W.2d at 7273). Moreover, that line of cases does not excuse a lawyers fraudulent conduct undertaken outside the litigation context (for example, as part of a scheme to defraud initiated by the lawyers friends, colleagues, or even clients). Finally, there is contrary authority holding that an attorney can be held liable to an opposing party for fraud committed in the course of representing a client (see Querner v. Rindfuss, 966 S.W.2d 661 (Tex. App.San Antonio 1998, review denied). The Supreme Court of Texas is yet to speak on the subject. In light of the foregoing, a word to the wise: do not seek your fame and fortune by being the most zealous lawyer in town.
2. Attorneys Vicarious Liability

Traditionally, lawyers practicing together did so only in the form of partnerships. Under general principles of partnership law, each partner lawyer was jointly and severally liable financially for the damages caused by the professional malpractice or related tort of any partner of the firm (1 R. Mallen & J. Smith, LEGAL MALPRACTICE (West 4th ed. (4 v.)1996), 5.1), as well as those of associates or non-lawyers employed there. Id., 5.5. In more modern times, lawyers have been allowed to practice in the form of professional corporations or professional associations and to associate with one another in still more complex arrangements, such as in a partnership composed of partners each of which is a professional corporation or professional association. Id., 5.4. While lawyers have adopted these

134

You, Too, Can Be Sued - Part I

organizational forms of practice for a variety of reasons, one important consideration has been to limit their liability for the unprofessional acts or omissions of their colleagues. Id. Until very recently, these efforts have not been particularly successful. Because most malpractice claims are settled rather than tried to judgment, and the resulting settlements funded through a mechanism that spreads their costs across most if not all members of the firm (either insurance or a levy against all financially responsible partners), attorneys associated in practice have ended up being held jointly and severally liable for the damages caused by errant colleagues or lay personnel, without much consideration being given to the form in which those attorneys practiced together. An effort has been made to change this in Texas with the authorization of two new types of entities in which lawyers, among others, may practice: professional limited liability partnerships (Tex. Rev. Civ. Stat. Ann. art. 6132b, 15 (West 1996)) and professional limited liability corporations. Tex. Rev. Civ. Stat. Ann. art. 1528n, 11.01, et seq (West 1996). Under the professional limited liability partnership form of organization, provided that specified statutory procedures are followed, fellow partners of an attorney guilty of malpractice or a related tort are liable to the injured party only if they: (1) were directing or supervising the culpable lawyer, (2) were directly involved in the specific culpable activity at issue, or (3) had notice or knowledge of it at the time it occurred. Tex. Rev. Civ. Stat. Ann. art. 6132b, 15(2) (West 1996). 1997 amendments to these provisions broadened this shield to cover all claims, not just those sounding in tort. In a professional limited liability corporation, again provided that specified statutory procedures are adhered to, fellow shareholders of a wrongdoing attorney, employee, or other agent or representative of the corporation are exempted from personal liability altogether. Tex. Rev. Civ. Stat. Ann. art. 1528n, 11.05 (West 1996). In addition, however, in each case the professional entity itself is jointly and severally liable with any attorneys found guilty of professional wrongdoing. Tex. Rev. Civ. Stat. Ann. art. 1528n, 11.05; art. 6132b, 15(4) (West 1996). These provisions could have the effect of putting all attorneys in the firm at some financial

risk, just as is true with other forms of organizational practice. As yet, the limited liability protections supposedly furnished by the professional corporation, limited liability partnership and limited liability corporation forms of practice have not been tested in Texas. The limited financial liability of attorneys under these enactments is considerably narrower than the disciplinary liability set out in Rules of Conduct 5.01, 5.02, and 5.03. Consequently, lawyers must be careful not to be lulled into a sense of complacency by the additional financial protection afforded by these new entities. You also should bear in mind that these new enactments do not change the principles applicable to resolving motions to disqualify counsel based on conflicts of interest involving an attorneys fellow lawyers (see Henderson v. Floyd, 891 S.W.2d 252 (Tex. 1995); Texaco, Inc. v. Garcia, 891 S.W.2d 255 (Tex. 1995)) or lay personnel. See In re American Home Products Corp.,985 S.W.2d 68 (Tex. 1998); Phoenix Founders, Inc. v. Marshall, 887 S.W.2d 831 (Tex. 1994); Grant v. Thirteenth Court of Appeals, 888 S.W.2d 466 (Tex. 1994). Every effort should be made to avoid such conflicts through careful checking and screening procedures. Failure to do so can result in lost fees and possible malpractice liability.
3. Attorneys Statutory Liability

Prior to 1995, statutes regulating deceptive business practices have been applied to attorneys in Texas. As early as 1980, it was established that the Texas Deceptive PracticesConsumer Protection Act (DTPA) governs conduct by attorneys that would qualify as unconscionable under the Act. See DeBakey v. Staggs, 605 S.W.2d 631 (Tex. Civ. App.Houston [1st Dist.] 1980, writ refd n.r.e.); Lucas v. Nesbitt, 653 S.W.2d 883 (Tex. App.Corpus Christi 1983, writ refd n.r.e.). See also Latham v. Castillo, 972 S.W.2d 66 (Tex. 1998) (plaintiff can recover mental anguish damages under a pre-1995 version of the DTPA caused by a lawyers failure to file a medical malpractice action and lying to client about that failure). Moreover, while no reported decisions involving lawyers occurred, other professionals were found liable for knowing violations of the DTPA, as well as for those based on breach of

You, Too, Can Be Sued - Part I

135

express warranties. See Chapman v. Wilson, 826 S.W.2d 214 (Tex. App.Austin 1992, writ denied); McDade v. Texas Commerce Bank, 822 S.W.2d 713 (Tex. App.Houston [1st Dist.] 1992, writ denied). Under pre-1995 versions of the DTPA, there was no reason to believe that Chapman and McDade would not apply to attorneys as well. Another issue that had been of some interest under the pre-1995 versions of the DTPA was whether their implied warranty of good and workmanlike performance recognized in certain cases also applied to attorneys. Although the Fifth Circuit viewed that issue as open in City Public Services Board v. General Electric Co., 947 F.2d 747 (5th Cir. 1991), intermediate Texas appellate courts had consistently refused to utilize an implied warranty theory in cases involving claims against professionals. See City of Austin v. Houston Lighting & Power, 844 S.W.2d 773, (Tex. App.Dallas 1993, writ denied); Kubinsky v. Van Zandt Realtors, 811 S.W.2d 711 (Tex. App.Fort Worth 1991, no writ). Much of the uncertainty surrounding the applicability of the DTPA to attorneys has been removed by the extensive 1995 amendments to it. See Vernons Tex. Sess. L. Serv., ch. 414 (74th Legis., 1995 Reg. Sess.) (H.B. No. 668). Of greatest interest to attorneys are newly created sections 17.49(c) and (d), which provide: (c) Nothing in this chapter shall apply to a claim for damages based on the rendering of a professional service, the essence of which is the providing of advice, judgment, opinion, or similar professional skill. This exemption does not apply to: (1) an express misrepresentation of a material fact that cannot be characterized as advice, judgment, or opinion; (2) a failure to disclose information in violation of section 17.46(b)(23) [information relating to goods or services which was known at the time of the transaction if such failure to disclose was intended to induce the consumer to enter into a transaction which he or she would not have done had the information been disclosed];

an unconscionable action or course of conduct that cannot be characterized as advice, judgment, or opinion; or (4) a breach of an express warranty that cannot be characterized as advice, judgment, or opinion. (d) Subsection (c) applies to a cause of action brought against the person who provided the professional service and a cause of action brought against any entity that could be found vicariously liable for that persons conduct. Id., 4. These amendments clearly preclude DTPA actions based on implied warranties. They also sharply curtail those based on express misrepresentations, unconscionable actions or conduct, and breach of express warranty, by precluding all such claims against both the allegedly directly liable attorney and any entity vicariously liable due to that attorneys conduct, if those claims are based on what could be characterized as advice, judgment, or opinion on the attorneys part. The 1995 amendments will govern all causes of action that accrue after September 1, 1995 and all causes of action (regardless of date of accrual) upon which suit is filed on or after September 1, 1996. Id., 20. In addition to amending the DTPA, the legislature also enacted amendments to the Civil Practice and Remedies Code, providing that those signing pleadings or motions thereby certify that to the best of their knowledge, formed after reasonable inquiry: (1) the pleading or motion is not being presented for any improper purpose, including to harass or to cause unnecessary delay or needless increase in the cost of litigation; (2) each claim, defense, or other legal contention in the pleading or motion is warranted by existing law or by a serious argument for the extension, modification, or reversal of existing law or the establishment of new law; (3) each allegation or other factual contention in the pleading or motion has evidentiary support or, for a specifically

(3)

136

You, Too, Can Be Sued - Part I

identified allegation or factual contention, is likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) each denial in the pleading or motion of a factual contention is warranted on the evidence or, for a specifically identified denial, is reasonably based on a lack of information or belief. Civ. Prac. & Rem. Code, subt. A, tit. 2, 10.001(Vernons Tex. Sess. Law Serv. Ch. 137 (S.B. 31) (1995)). The amendments further provide that a party may make a motion for sanctions for violations of these provisions (id., 10.002) and, after allowing the party subject to such a motion a reasonable opportunity to respond (id., 10.003), the court may award certain enumerated sanctions (id., 10.004) to the prevailing party, including reasonable expenses and attorneys fees incurred in presenting or opposing the motion. Id., 10.002(c). Federal and state statutes in other areas also may impose additional responsibilities on lawyers. Attorneys in the securities field involved in preparing documents in the public domain, such as prospectus registration statements, and quarterly or annual reports, have heightened obligations to ensure that the contents of those reports are factually accurate and not misleading. See ABA Formal Op. 335 (Feb. 1974). Attorneys preparing opinion letters in connection with securities offerings, tax shelters, and the like have similar obligations. See id., ABA Formal Op. 346 (Jan. 1982); ABA Formal Op. 85-352 (1985). An intentional, knowing, or reckless violation of these federal or state requirements can leave you liable along with your client for any resultant damages. B. Storm Cloud on the Liability Horizon

Suit Within a Suit. If the supreme court is inclined to bring Texas more in line with progressive viewpoints, the so-called suit within a suit rule may be in trouble. It seems unfair to require a person claiming that a former lawyer bungled earlier litigation to show that the earlier suit, if properly handled, would have resulted in a judgment in that persons favor, when in all likelihood that case would have been settled

rather than tried. Other jurisdictions permit a party in that position to show that the underlying suit had settlement value and to use that value as a measure of damages. See Lieberman v. Employers Ins. of Wausau, 419 A.2d 417 (New Jersey 1980); Merzlah v. Purcell, 830 P.2d 1278 (Mont. 1992). Cf. Alva v. Hurley, Fox, Selig, Caprari & Kelleher, 593 N.Y.2d 728 (Sup. Ct. N.Y. 1993) (providing that New York law requires only proof of actual damages). While no Texas court has taken this position, the case of Heath v. Herron, 732 S.W.2d 748 (Tex. App.Houston [14th Dist.] 1987, no writ) affirmed a judgment against an attorney for malpractice based on expert settlement value testimony admitted without objection. Id. at 753. Moreover, the supreme court recently held that under a pre-1995 version of the DTPA, the suitwithin-a-suit requirement did not apply to a lawyers liability to his former clients for unconscionable conduct. All the former clients had to show was that the lawyers misconduct caused them some damage. See Latham v. Castillo, 972 S.W.2d 66 (Tex. 1998). Negligent Misrepresentation Claims. You will recall that the supreme court held in Barcelo v. Elliott, 923 S.W.2d 575 (Tex. 1996) that a lawyer can not be held liable to a non-client for malpractice. Nonetheless, in the wake of Barcelo the Supreme Court recently concluded that the lawyer can be liable to a nonclient for negligent misrepresentation, even though there is no privity between them. See McCamish, Martin, Brown & Loeffler v. F.E. Appling Interests, 991 S.W.2d 787 (Tex. 1999). The court stated that the elements of that cause of action are those set out in sections 551(1) and (2) of the RESTATEMENT (SECOND) OF TORTS, namely that: (1) One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information. (2) Except as stated in Subsection (3), the liability stated in Subsection (1) is

You, Too, Can Be Sued - Part I

137

limited to loss suffered (a) by the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information or knows that the recipient intends [for him] to supply it; and (b) through reliance upon it, in a transaction that he intends the information to influence or knows that the recipient so intends or in a substantially similar transaction. The court was careful to point out the limited scope of liability under its formulation of the tort of negligent misrepresentation. It stated that such liability was confined to situations in which the attorney who provides the information is aware of the nonclient and intends that the nonclient rely on the information, or put somewhat differently that the information is transferred by an attorney for a known purpose. Id at 794. The court also pointed out that an attorney could defend against unjustified reliance on statements by including disclaimers as to the scope and accuracy of the factual investigation or assumptions forming the basis of the representation or the representation itself. Id. The court added that because section 552 requires that a claimant justifiably rely on a lawyers representation of material fact, ... not every statement made by an attorney to a nonclient is actionable under [its provisions]. Id. The court illustrated this situation by referring to a lawyers representations of his or her clients position in negotiations, and added that [g]enerally, courts have acknowledged that a third partys reliance on an attorneys representation is not justified when the representation takes place in an adversarial context. Id. Finally, the court cited with approval the position taken on this issue by section 73(2) of the RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS to the effect that a lawyer normally wont be liable for a negligent misrepresentation to a nonclient unless the lawyer... invites the nonclient to rely on the lawyers opinion or provision of other legal services. Id. At 794-795. Clearly, however, not all potential malpractice cases will involve arguably actionable misrepresentations by opposing counsel: Barcelo itself did not. Where is the greatest risk? The answer is representations

made in connection with the settlement of disputes or the consummation of transactions. Leave those statements to your clients as much as possible. Do not vouch for them yourself. Breach of Fiduciary Duty Claims. The recent case of Burrow v. Arce, 42 TEX.S.CT.J. 932 (Tex., No. 98-0184, July 1, 1999), which discusses the liability of an attorney for breaches of fiduciary duty occurring in connection with the settlement of his clients case, promises to complicate attorneys lives considerably. Its most important features are that an attorney can be held liable in damages for alleged breach of fiduciary duty in connection with a settlement entered into by his client even if the client: (1) accepted and approved of the settlement; (2) did not show that the settlement was unfair or inadequate in any way; and (3) did not establish what award he or she would have received absent the breach of duty. Instead, the client could elect to measure his or her damages in terms of the fee paid to the breaching attorney and recover all or some portion of that fee as damages, with the amount of forfeiture determined by the severity of the breaches involved. Id. at 937-943. The court also concluded that while the issue of whether an attorney breached his or her fiduciary duty to a client generally would involve issues of fact to be resolved by a jury, the issue of amount of fees to be forfeited in the event of a breach would be one of law for the court. Id. At 943-944. The supreme court made a number of efforts to limit the scope of its holding. It began by rejecting the notion that full fee forfeiture should be the routine remedy, at least in serious cases, as plaintiffs had argued. It observed that to require an agent to forfeit all compensation for every breach of fiduciary duty, or even every serious breach, would deprive the remedy of its equitable nature and would disserve its purpose of protecting relationships of trust. 42 TEX.S.CT.J. at 940. It referred with approval to the formulation of the remedy contained in section 49 of the RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS, namely that [a] lawyer engaging in clear and serious violations of duty to a client may be required to forfeit some or all of the lawyers compensation for the matter. 42 TEX.S.CT.J. at 941; emphasis added. The court also accepted the RESTATEMENTs formulation of what constitutes a serious violation, Id. and its nonexhaustive list of the factors bearing on how

138

You, Too, Can Be Sued - Part I

serious a violation is, except for adding its own factor that must be given very great weight namely, the public interest in maintaining the integrity of attorney-client relationships. Id. at 942. Because the court had earlier cautioned that too free a use of the fee forfeiture remedy would be a drastic result [that] would unnecessarily and perhaps detrimentally burden the [attorneys] exercise of judgement in conducting the [clients] affairs (id. at 940), this phrasing could be viewed as a caution to lower courts to exercise restraint in applying that remedy. Even as narrowed by the supreme court, Burrows is an extremely significant case. Although the breaches of duty alleged in Burrow were somewhat unusualsettling clients claims in the aggregate without making the necessary disclosures and obtaining the required client consentsthere is absolutely nothing in the opinion to limit it to those factors. The facts and circumstances that could give rise to such a breach are almost endless. As just a few examples, disgruntled clients may claim that trials undertaken or settlements entered into turned out poorly due to their lawyers inadequate pretrial discovery, inadequate trial preparation, slipshod courtroom practice, poor negotiating tactics, and the like. Any such lapses, if established, would constitute malpractice as well as breaches of fiduciary duty. The big difference between the two causes of action after Burrow, of course, is that to recover for malpractice the client would have to also show that he or she was damaged as a result of the attorneys mistakes, while no such showing would be needed to be eligible for full or partial fee-forfeiture damages for the breaches of fiduciary duty occasioned by the identical lapses. Its safe to predict that this revitalized cause of action will become the weapon of choice in the arsenal of plaintiffs professional liability attorneys. III. ACQUIRING BUSINESS First, make sure your business acquisition methods comply with applicable Rules of Conduct provisions. You are not allowed to retain business acquired in violation of the disciplinary rules. Rule of Conduct 7.06. Moreover, if your violation involves any of the activities prohibited by Rule of Conduct 7.03(a)(c) (involving certain aggravated forms of

professional misconduct undertaken in an effort to secure business), you also lose all right to any fee in the matter. Rule of Conduct 7.03(d). Second, beware of barratry. Spurred on by horror stories of ghoulish solicitation practices in the wake of a school bus accident resulting in mass drownings in south Texas, the legislature enacted a measure that greatly expands the scope of the barratry statute (Tex. Penal Code Ann. 38.12) and criminalizes many such practices as felonies. Moreover, barratry is a specifically enumerated serious crime for disciplinary purposes. Rule of Conduct 8.04(b). If the type of barratry of which you are convicted requires you to have acted knowingly or intentionally, upon conviction you are subject to automatic disbarment or suspension. Rules of Conduct 1.06(O), (U), 8.01, 8.02, 8.05, 8.06. One particularly controversial feature of the legislative enactment has been its provisions prohibiting lawyers from approaching certain types of clients until 31 days after the transaction giving rise to the need for the lawyers services. See Tex. Penal Code Ann 38.12(d)(2)(A), (C), (D). These provisions were struck down as unconstitutional by the district court in Moore v. Morales, 843 F. Supp. 1124 (S. D. Tex. 1994), as applied to cases involving personal injury, family law or criminal law matters. More recently, however, in the wake of the Supreme Courts upholding of virtually identical provisions in Florida Bar v. Went For It, Inc., 115 S.Ct. 2371 (1995), the Fifth Circuit reversed the district court and reinstated the challenged provisions with respect to suits for personal injury. Moore v. Morales, 63 F. 3d 358 (5th Cir., 1995). A word to the wise: familiarize yourself with the barratry statute and heed its strictures. Third, keep any promises made in your advertisements or written solicitation materials. Failure to do so can violate the DTPA. Moreover, do not promise too much. Do not create unjustified expectations of success in order to acquire business. Such representations can be viewed as express warranties for DTPA purposes. Even if you dodge that bullet, the gap between promise and performance will leave you with unhappy clients. Such clients will not use your services again, will not recommend you to others, and may sue you for malpractice.

You, Too, Can Be Sued - Part I

139

IV. CLIENT INTAKE A. Know When to Decline Business

One of the first and most important lessons you will learn is that not every case is worth taking. You want to avoid matters that are likely to tempt you into neglecting them because, for example, the client or the clients cause is extremely repugnant to you or because the monetary payoff is extremely minimal in comparison to the time and effort that the case will entail. You also want to be very careful in accepting matters in fields with which you are not already familiar. This is especially the case if the matter is exceptionally complex, the new area is one you have no strong interest in mastering, or the pressures of other business will make it extremely difficult to devote the effort necessary to become competent in the new field. Finally, do not try to keep the doors open by being a persons third, fourth, or fifth lawyer. Maybe all of your predecessors really were as incompetent, disreputable, or downright dishonest as such a person will say they were, but do not be quick to assume this was so. As my father always told me: Trust everyone, but cut the cards! Declining business is generally unpleasant. Whats more, it also can expose you to malpractice liability if you are not careful to do it correctly. Here are a few tips: You have a duty of confidentiality even to a person you decline to represent. Although consultation does not establish an attorneyclient relationship, Thomas v. Thomas, 641 S.W.2d 685 (Tex. Civ. App.Waco 1982, no writ), you must still maintain confidentiality even if there is no attorney-client relationship. See E.F. Hutton & Co. v. Brown, 305 F. Supp. 371 (S.D. Tex. 1969); Duval County Ranch Co. v. Alamo Lumber Co., 663 S.W.2d 627 (Tex. Civ. App.Amarillo 1983, no writ); Lott v. Ayres, 611 S.W.2d 473 (Tex. Civ. App.Dallas 1980, writ refd n.r.e.). Consultation with one party to a dispute frequently will preclude representation on behalf of the other party. See Gleason v. Coman, 693 S.W.2d 564 (Tex. App.Houston [14th Dist.] 1985, writ refd n.r.e.). This is always true if you were approached by the first party in good faith and he or she disclosed relevant confidences.

You must specifically inform the person that you are not undertaking representation. See Rice v. Forestier, 415 S.W.2d 711 (Tex. Civ. App.San Antonio 1967, writ refd n.r.e.). Do this as soon as you so decide, because an implied attorney-client relationship may be found to exist until you do. Return all documents and property and get a receipt. (The receipt itself can state that the items are being returned because you have declined representation.) Although you are not obligated to do so, you may want to suggest other attorneys. If you negligently fail to advise a prospective client of rights that he or she may lose (e.g., notices, answers, limitations, etc.), you can be held liable. See, e.g., Miller v. Metzinger, 154 Cal. Rep. 22 (Cal. App. 1979); Togstad v. Vosely, Otto, Miller & Keefe, 291 N.W.2d 686 (Minn. 1980). If you are aware of any such impending deadlines, disclose them in writing. B. Be Sure You Know Who Your Clients Are

Just as important as not taking on a representation that you will later regret is to avoid taking on a client without quite intending to. Beware of the casual leave everything to me, uttered well along in the evening of a memorable social gathering, but all but forgotten the next day. You may end up representing people without intending to do so. The test of whether the attorney-client relationship was formed is the reasonable expectation of the client in light of all the surrounding circumstances. See Perez v. Kirk & Carrigan, 822 S.W.2d 261, 265 (Tex. App. Corpus Christi 1992, writ denied). Neither the signing of a contract of employment, the payment of a fee, nor even the offer or promise of payment, is required. Perez supra, See Anderson v. State, 266 S.W. 159, 162 (Tex. Crim. App. 1924). To avoid these kinds of problems, never agree to undertake a matter in an informal setting. Along the same lines, never promise that you will contact the person involved to complete the formalities of representation. Instead, require him or her to initiate the next contact (i.e. Come by [or Call me at] my office, and Ill see if theres anything I can do.). Finally, unless you know from your conversation that there is no statute of limitations problem, always ask that the call or

140

You, Too, Can Be Sued - Part I

appointment be made the next business day. You do not want the statute to expire on what, even arguably, is your watch. Similar problems can arise in many other settings, where a lawyer is acting as attorney for only one party but may be perceived by others as their attorney as well. Consider some examples: An attorney for an insured is not the attorney for the insurer paying for his or her services, even if the lawyer offers incidental advice to the insurer concerning its interests. See Employers Cas. Co. v. Tilley, 496 S.W.2d 552 (Tex. 1973). Likewise, a lawyer serving as attorney for an organization owes primary allegiance to the entity as distinct from its directors, officers, or other employees. Rule of Conduct 1.12(a). Similarly, the attorney for a partnership owes primary professional allegiance to the entity rather than to its partners. And the attorney for the executor of an estate owes primary professional allegiance to the executor rather than to the estates beneficiaries. In each of these situations, however, while the lawyer may have the identity of his or her client firmly in mind, others involved in the representation might not see things so clearly. While current law does not require you to disabuse non-clients of the notion that you are their lawyer until you realize that they apparently misunderstand the situation (see Parker v. Carnahan, supra), in many cases you would be prudent to make sure from the outset that they realize that you are not their lawyer. A very short letterclarifying the situation and including an acknowledgment to be signed by the recipient that he or she has read and understood your letter and realizes that you are not his or her attorneyis the preferred mode of accomplishing this objective, because it leaves you in a more protected position in the event that a dispute arises later. If you fail to keep these distinctions in mind, two bad things can happen. First, you can end up subordinating the interests of your true client to those of a non-client, a sure way to commit malpractice. Second, you may end up becoming the de facto attorney for the non-client, despite having no intent to do so, and thus owe that nonclient all the obligations normally owed to a client. See Perez v. Kirk & Carrigan, 822 S.W.2d 261 (Tex. App.Corpus Christi 1991, writ denied). Breach of those obligations can leave you liable

to the non-client for malpractice, breach of fiduciary duty, and the like. See Perez, supra; Parker v. Carnahan, 772 S.W.2d 151, 157 (Tex. App. Texarkana 1989, no writ). C. Check for Conflicts Before Accepting Representation

Before agreeing to undertake a matter, you should take reasonable measures to determine whether you have a conflict of interest that would prohibit you from doing so. You must keep in mind not only those conflicts that are personal to you, but also those of other members of or associates in your firm. For these purposes, each lawyer in a firm is treated as if he or she were personally representing every client of any member or associate of that firm. Conflicts of interest to be considered include those involving both prospective and present clients (Rules of Conduct 1.06, 1.08(f)), former clients (Rule of Conduct 1.09), any third person expected to pay for the lawyers services (Rule of Conduct 1.08(e)), and a variety of conflicts between the interests of the prospective client and those of the lawyer. Rules of Conduct 1.06(b)(2), 1.08(a)-(d), (g), and (h). When you are considering representing multiple clients in a single matter, conflicts of interest within the prospective client group also need to be examined. See Rules of Conduct 1.06(b), 1.07 and 1.12. Remember the G of the GIN rule. One of the surest ways to get in trouble is to take on multiple clients whose conflicting interests require you either to place the interests of one ahead of the others or to compromise those of both. The State Bar has identified the ten conflicts listed below as the most common sources of disciplinary complaints. All of them can lead to malpractice liability as well. C Representing both sides in a supposedly uncontested divorce. C Representing co-defendants in a criminal case. C Representing multiple heirs to an estate. C Not having a clear idea of who your client is (for example, the corporation that retained you, or its officers), especially in non-litigation settings. C Representing both an organization and its

You, Too, Can Be Sued - Part I

141

principals. Providing free legal advice to charitable boards or organizations where your own interests are involved. C Entering into a business relationship with your client. This can occur in a number of ways, such as serving on a clients board of directors, receiving loans from clients, going into business together, or taking an interest in an organization as a legal fee. While such activities are not absolutely prohibited, many are viewed as presumptively fraudulent. At the very least, never enter into these types of arrangements without urging your client to obtain independent legal advice. C Entering into a sexual relationship with your client. Yes, this actually does happen; and when it does, there is an immediate conflict of interest, particularly in family law matters. Some courts have declined to hold a lawyer liable for malpractice due to such conduct unless actual prejudice to a clients interests at stake in the representation can be shown. See Suppressed v. Suppressed, 565 N.E.2d 101 (Ill. 1990). Other courts, however, have held such conduct to constitute malpractice in and of itself. See Vallihoto v. DiSandro et al. (unreported decision, discussed in the NEW YORK TIMES, (Natl Ed.), Nov. 29, 1992, p. 9, col. 1). Although Texas courts have not resolved that issue in a reported decision, the author is aware of two ethics experts in Texas who have taken the position that such conduct is malpractice per se. C Committing malpractice and not promptly telling your client. C Not terminating an attorney-client relationship that was properly commenced once a conflict develops. Always do your conflicts check before obtaining any confidential information from the prospective client. You can accomplish this by asking the individual to identify the person or other entity with whom he or she has a dispute (including, if possible, any affiliated entities such as the employers of an individual defendant and the parents, subsidiaries, or other affiliates of an organizational defendant), and check those against your firms records of present and former

clients before taking a detailed statement from the prospective client (discussed below). Remember also that situations other than your or your colleagues representation of a client with adverse interests can trigger a potential conflict. Is a lawyer in your firm on the board of directors of an actual or potential opposing party? A substantial shareholder of or investor in such an entity? A close personal friend or business colleague? Are you so opposed to your potential clients objectives (or so sympathetic to those of an opposing party) that your ability to represent that person zealously reasonably could be called into question? Is another member of your firm (especially one likely to be in a position to influence your decisions concerning the contemplated representation) of such a mind? Each of these situations can raise a sufficiently serious conflict of interest to require you to decline the proffered representation or, at a minimum, to disclose it to and obtain informed consent from all affected parties. While it frequently is painful to turn down business, it is always better to do so at the outset than to have to withdraw (or be disqualified) from the representation later, when your former client will be harmed more seriously and you may be faced with a loss of the fee for your time and potential malpractice liability. You also need to bear in mind that even if you complete the conflicted representation, you have furnished the client involved with a weapon to use against you in the event you do not achieve a favorable result. Representing a client while laboring under a conflict of interest is not tantamount to malpractice, but its a good start. Some conflicts of interest can be waived. Rules of Conduct 1.06(c), 1.07(a)(1), 1.08(a), (e). Be careful, however, in availing yourself of this option. The standards for obtaining a valid waiver are difficult to meet. The full disclosure and informed consent called forwhich, by the way, must be obtained from all affected personsare not mere formalities. Moreover, it may not be possible to give the requisite disclosures, because one party or another will not consent to your revealing important confidential information to the others. In such cases, you must decline the representation. Finally, remember that your obligations with respect to conflicts are continuing ones. Conflicts arising after representation is

142

You, Too, Can Be Sued - Part I

commenced must be addressed in the same manner as those existing at the outset. D. Clarify Dates and Facts at the Initial Interview

This is your last chance to check for conflicts. If you have not resolved initial conflict-of-interest issues by this time, do so now. If your prospective client is a potential plaintiff, always find out when any incident(s) giving rise to the matter at hand occurred, and determine when the statute of limitations will expire. For psychological reasons, it is not uncommon for people to consult lawyers on or about an anniversary date of such an incident. You are likely to find out that, in a distressingly high percentage of all the cases you handle, you have a very limited time in which to initiate suit. If your prospective client is a defendant, always find out when the suit was filed and when the defendant was served. Determine when an answer is due. If the answer is past due and you decide to accept the matter, make arrangements on that same day to obtain the entire court file so that you can either forestall or seek to set aside entry of a default judgment. The remainder of the initial interview should be devoted to getting the clients initial version of the story. If you decide to accept the matter, you need to advise the client clearly of what other information he or she is to provide, and when. You also should identify gaps in the case and devise a plan for filling in those gaps, either through informal discovery or other means. Set dates by which those tasks are to be accomplished. Calendar those dates. E. Set Fees Appropriately

The Rules of Conduct encourage you to enter into a fee agreement as soon as possible. Rule of Conduct 1.04(c), cmt. 2. Although only contingent fee agreements must be in writing (Rule of Conduct 1.04(d)), the Rules of Conduct strongly encourages you to put all fee agreements in writing. Rule of Conduct 1.04(c), cmt. 2. This is sound advice. Nearly one-fifth of all grievances involve fee disputes, and many claims against attorneys either relate directly to fee disputes or are brought as compulsory counterclaims to

attorneys suits for their fees. See Bailey v. Thomas 622 S.W.2d 143 (Tex. Civ. App.Eastland 1981, writ refd n.r.e.); Hardy v. McCorkle 765 S.W.2d 910 (Tex. App.Houston [1st Dist.] 1989, no writ). Clarifying just what your fee arrangement is at the outset will resolve many of those problems. These are the Dos: Condition your initial work on payment of a fee. Once you have signed on, you cannot withhold services because of nonpayment. Rule of Conduct 1.01. And you cannot agree to furnish services only up to a stated amount if it is reasonably foreseeable that more will be required. Moreover, few things are more likely to lead you to neglect a case than the belief that you are not being compensated fairly for your services. So be fair to yourself and to your client. Set a reasonable fee for your services as soon as you decide to accept a matter. Be sure that your fee agreement fully informs your client of the financial terms of the engagement. At a minimum, state how fees are to be computed, including the use to be made of any retainer; explain the attorneys power to hire and pay consultants; and identify expenses that will be charged to the client. Clients tend to be irritated by surprise charges for such things as the services of an accountant whom they never heard of, computer research costs, mileage to the courthouse plus parking, photocopies at 50 cents each, quarter-hour charges for five-minute telephone calls, delivery service charges, and the like. Lawyers increasingly are trying to pass on overhead costs to clients. That is an inflammatory practice. If you are doing so, you had better explain all costs up front. In addition, if there are any limits on your representation (for example, that you will handle a matter through trial but will not handle the appeal), be sure to spell those matters out as well. Finally, if you are a forwarding lawyer and expect a fee for that activity, be sure to comply with Rule of Conduct 1.04(f). These are the DONTs: Do not low-ball your initial fee in order to get the business, with the expectation that you will be able to renegotiate it later. A fee negotiated at the onset of representation is viewed as an arms-length business transaction and is unlikely to be set aside unless illegal or unconscionable. See Rule of Conduct 1.04(a). Once the attorney-client

You, Too, Can Be Sued - Part I

143

relationship is established, however, a renegotiated fee is governed by the standards of a fiduciary dealing with his or her beneficiary. Under those standards, effect is generally not given to a new agreement that obligates the client to pay the lawyer more than the sum originally agreed upon. See Robinson v. Garcia, 804 S.W.2d 238, 248 (Tex. App.Corpus Christi 1991), error denied per curiam on other grounds, 817 S.W.2d 59 (Tex. 1991). There is a presumption of unfairness attached to a fee contract entered into during the existence of the attorney-client relationship, and the burden of showing its fairness is on the attorney. See Archer v. Griffith, 390 S.W.2d 735, 739 (Tex. 1964). Do not make disclaimers of liability for malpractice. These are verboten. Rule of Conduct 1.08(g). I would likewise consider questionable a provision disclaiming express and implied warranties under the DTPA, tempting as such a provision might be. Comment, Expansion of Implied Warranty Coverage Under the DTPA: Service Contracts, 17 TEX. TECH L. REV. 197 (1986). The 1995 amendments to the DTPA, discussed above, give you considerable protections in these respects. Do not be greedy. Furthermore, only a fool makes representations about the expected outcome of the case or about the lawyers ability. By taking the case, you impliedly warrant that you have the requisite competence, will exert your best judgment, and will use reasonable, ordinary care. See Cook v. Irion, 409 S.W.2d 475 (Tex. Civ. App.San Antonio 1966, no writ). Thats enough to worry about. Do not insist on a non-refundable retainer. While such arrangements are not absolutely prohibited, in particular circumstances they could be viewed as unconscionable or as unduly restricting a clients right to discharge you. See Rule of Conduct 1.04(a), PEC Op. 431 (V. 49 TEX. B. J. 1084 (1986). A reasonable minimum fee based on a lawyers estimate of what the case will require, with fees and expenses charged against that minimum retainer deposit, is sensible. But requiring a client to pay a fee just to retain you, with no services required and no provision for refund, is an invitation to troubleyou are taking a fee without an obligation to provide any services. Do not include any protection devices in the fee contract. To include provisions permitting

you to withhold services for nonpayment of fees, or to require the client to obtain your permission to settle, or to keep the clients file if fees are not paid, all can be disciplinary offenses. Tex. Comm. On Professional Ethics, Ops. 395 (42 TEX. B.J. 436 (1979) corrected 43 TEX. B.J. 566 (1980)), 411 (47 TEX. B.J. 47 (1984)). You can take a lien on property as security. V. CLIENT COMMUNICATION One of the easiest ways to get in trouble is to fail to communicate effectively with your clients. Clients who do not hear from you feel neglected, no matter how hard you may be working. Clients who feel neglected become angry. Clients who become angry will sue you. The Rules of Conduct now spell out the basic contours of a lawyers duty to communicate with clients. Rule of Conduct 1.03(a) requires you to keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. Rule of Conduct 1.03(b) imposes the additional obligation to explain a matter [to your client] to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. The purpose of these provisions is to ensure that the client will be able to determine such matters as the objectives and general methods of representation and whether or not to accept an offer of settlement (Rule of Conduct 1.02(a)(1), (2)), in an intelligent manner. Although these standards are not intended to be directly applicable to malpractice actions, their mere existence heightens the likelihood that a court will view serious lapses in this area as departures from the standard of care you owe your clients. Besides, the largest percentage of all forms of grievances against lawyers are based on neglect. Clients who feel spurned also are much more likely to sue youusually after the matter is concludedthan are clients who feel they were treated with consideration. In fact, some studies indicate that this sense of how they were treated is more important in clients decision to sue than is the outcome of their cases! To enhance client communication and avoid ill-will, here are a few simple tips: Return Calls. Return phone calls promptly. If you cant do it the same day, have someone else

144

You, Too, Can Be Sued - Part I

in the office do so. Forward Documents. Forward pleadings and other important papers to your client routinely. Report on Activities. Report on activities in the case periodically. If you send monthly bills, include such reports with them. The reports need not be elaborate. It is enough that they convey a general sense of activities in the case and anticipated upcoming events. Explain Discovery Procedures. Take the time to explain discovery procedures to clients not familiar with them, and offer your assistance in dealing with them. Discovery devices are often irritating to or traumatic for clients. Do not merely transmit discovery requests to your clients along with a curt request to prepare the necessary responses. Solicit Your Clients Opinions. Solicit your clients opinions on all important matters concerning the handling of their cases. Remember: its not your lawsuit, its theirs. Rule of Conduct 1.02(a) explicitly gives your clients the final say concerning certain aspects of your representation. Even outside those areas, however, it is wise to involve your clients as much as possible. VI. A. HANDLING A MATTER Calendar, Calendar, Calendar

The single best protection against malpractice is to calendar all important deadlines in the case. This includes not only all events subject to timetables set out in applicable rules of procedure, but also deadlines based on court orders or the exigencies of the particular matter. Loss of important rights due to this kind of error verges on malpractice per se. It is impossible to remember all your obligations. Religiously make use of one of the several available manual or automated calendaring systems. The range of consequences attendant on missing deadlines range from unpleasant to lethal. A by-no-means exhaustive list follows: Entry of a Default Judgment for failing to file a timely answer or for failing to appear at trial. Discovery Disasters, such as: C Waiver of objections to interrogatories (including such standbys as undue burdensomeness, irrelevance, or more than 30 responses being called for). Tex. R.

Civ. P. Ann. r. 168.6. (Cites to Tex. R. Civ. P. Ann. will hereafter be referred to TRCP). C Waiver of objections to requests for production of documents (including not only those based on undue burdensomeness or irrelevance but also those based on the existence of a privilege). TRCP 167.2. C Deemed admission of all matters sought to be admitted in requests for admissions, even though the matters involved were not actually true, unless good cause for their withdrawal is shown. TRCP 169.2. C Exclusion of witnesses at trial for failing to file timely supplements to interrogatory answers identifying them. TRCP 166b.6. While this lapse may be excused upon a showing of good cause, that showing is not readily made. See Alvarado v. Farah Mfg. Co., 830 S.W.2d 911 (Tex. 1992); Smith v. Southwest Feed Yards, 835 S.W.2d 89 (Tex. 1992). Dismissal for Want of Prosecution (DWOP) for failure to file timely and proper motion to retain, or to reinstate. Memorial Hosp. v. Gillis, 741 S.W.2d 364 (Tex. 1987). Striking of Briefs or Evidentiary Materials for failure to file them in accordance with applicable deadlines. Williams v. City of Angleton, 724 S.W.2d 414 (Tex. App.Houston [1st Dist.] 1987, writ refd n.r.e.); INA v. Bryant, 686 S.W.2d 614 (Tex. 1985). Loss of Right to Appeal due to failure to timely file a notice of appeal. Tex. R. App. P. 26.1 (hereafter TRAP). This is a jurisdictional defect. Be aware that in Texas merely filing a petition does not necessarily toll the statute of limitations. Due diligence in obtaining service is also required. See Rigo Mfg. Co. v. Thomas, 458 S.W.2d 180 (Tex. 1970). Additionally, unless you are absolutely certain that you have served the right person, use a couple of interrogatories at the outset of the case to make sure. It would be a shame to let the statute of limitations run out while you pursue the wrong person. Even if you have filed a pleading or other required response in a timely fashion, your client can lose important rights because of other defects. Because these losses are avoidable by

You, Too, Can Be Sued - Part I

145

following basic and well-settled procedures, they provide a fatal ground for malpractice claims. Important examples follow: Observe Due Order of Pleading. Texas follows a due order of pleading requirement for defensive pleadings. If an otherwise proper pleading is filed prior to pleadings which precede it in that order, the omitted preceding pleading no longer may be asserted. In Texas, the due order is as follows: C Special appearance (to contest personal jurisdiction, but NOT defects in service) C Motion to dismiss based on forum non conveniens C Motion to transfer venue C All other responsive pleadings (answers, pleas in abatement, counterclaims, etc.) Observe Particular Pleading Requirements. Many timely pleadings or other responses carry special requirements that, if not observed, result in waiver of the claim or defense involved. For example, an unsworn special appearance constitutes a general appearance unless the court grants leave to file an amended sworn motion. TRCP 120a; Dennett v. First Continental Investment Corp., 559 S.W.2d 384 (Tex. App.Dallas 1977, no writ). A second example: under TRCP 93, certain defenses must be sworn to in order to be effective. Make Sure Your Pleading or Response is Complete. Many rights are waived if not asserted in an initial timely pleading or other response, and they may not be resurrected at a later time. For example: C Sworn pleadings governed by TRCP 93, as well as affirmative matters governed by TRCP 94 are waived unless specifically pled in an answer. C All objections to discovery requests not included in your initial response are waived. C Grounds supporting (or opposing) motions for summary judgment are waived if not included in the motion (or response). TRCP 166a(c). B. Prepare, Prepare, Prepare

Whether a particular matter involves counseling, negotiation, or litigation, it is first essential that you prepare yourself adequately with respect to both legal and factual issues.

Some of the pointers set out below apply to all three settings, but most apply with special force to litigation. Know Your Clients Objectives. Too often lawyers assume they know what their clients hope to achieve in a matter when that is not the case. It is much harder to get where you want to be if you do not know where that is. If, as often is the case, those objectives are not entirely consistent, try to get a clear understanding of what priorities your clients attach to their objectives. Investigate Your Clients Cases Fully. First, do not forget informal discovery. Your own clients, and leads they provide to you, can be extremely fruitful sources of information. However, do not accept everything your clients tell you in blind faith. Clients forget. Clients engage in wishful thinking. Clients lie. Second, conduct the formal discovery necessary to understand the factual strengths and weaknesses of your clients cases. Prepare Every Case as if It Might Go to Trial. There are both pleasurable and painful reasons to take this injunction to heart, even if you have every reason to believe the matter will settle. First, well-prepared cases deter trials, because the other side realizes the result would be a real war that you would likely win. Moreover, wellprepared cases promote better settlements. You know what the case is worth, youre not afraid to try it if you arent offered that much, and your opponents know it. Thats how you get top dollar for plaintiffs (and bottom dollar for defendants). Moreover, lawyers have been found liable for malpractice because their clients were compelled to settle for inappropriately large (if defendants) or small (if plaintiffs) amounts due to counsels inability to present their cases effectively at trial. 3 Ronald E. Mallen & Jeffrey M. Smith, LEGAL MALPRACTICE (4th ed. (4 v.) 1996), 29.38 at 738-760; Collins on Behalf of Collins v. Perrine, 778 P.2d 912 (N.M. App. 1989); Scognamillo v. Olsen, 795 P.2d 1357 (Colo. App. 1990). This is especially true given the recent easing of what must be proven in order to establish damages stemming from a breach of fiduciary duty in connection with litigation settlement activities. See Burrows v. Arce, 42 Tex S.Ct.J. 932 (Tex., No.980184, July 1, 1999) discussed in the Storm Clouds on the Liability Horizon materials, supra. Watch Out for Sanctions. Courts are increasingly

146

You, Too, Can Be Sued - Part I

imposing sanctions on both litigants and their counsel for obstructive or otherwise inappropriate behavior. To the extent that such conduct is attributable to your advice and results in loss to your clientdue to either having to pay the sanction or losing the right to assert a claim or defensea credible malpractice claim exists. VII. SETTLING A MATTER

You cant always settle from a position of strength (your clients case may be a dog!), but never let yourself get in a position where you are proposing settlement because of your own lack of preparation. Never forget that whether to accept an offer in settlement is a matter for your client to decide, not you. Rule of Conduct 1.02(a)(2). Respect this limitation. Agreements to the contrary are improper. Texas traditionally has viewed as unethical any durable powers of attorney giving a lawyer the right to settle without the clients consent. Tex. Comm. on Professional Ethics, Op. 330, BAYLOR L. REV. 827-898 (1972). The same is true of provisions giving the lawyer veto power over settlement offers. Tex. Op. 395 , Id.. Moreover, settlements entered into by a lawyer without the clients authorization are voidable by the client. See Cleere v. Blaylock, 605 S.W.2d 294 (Tex. Civ. App.Dallas 1980, no writ). Johnson v. Rancho Guadalupe, Inc., 789 S.W.2d 596 (Tex. App.Texarkana 1990, writ denied). Always communicate settlement offers to your client. They have a right to that information. Allstate Ins. Co. v. Kelly, 680 S.W.2d 595 (Tex. App.Tyler 1984, writ refd n.r.e.). If you reject such an offer without appropriate consultation, you will be liable for the difference between the amount offered and the result actually obtained. Lysick v. Walcom, 65 Cal. Rptr. 406 (Cal. App. 1968). Your clients will expect advice from you concerning settlement offers. They are entitled to it. Here are some important guidelines to keep in mind concerning that advice. First, be truthful. Do not lie about the reasons for your views. Doing so can come back to haunt you. Second, be candid. Clients always need to hear bad news as well as good. Rule of Conduct 2.01. That point is never more important, however, than in connection with settlement offers. Frequently, clients have grandiose expectations concerning

their prospects of success which make it hard for them to swallow an offer you find to be entirely realistic. If so, you have to tell them who ate the cabbage. If you do not, and an even more disastrous outcome ensues, malpractice liability is not out of the question. Finally, put your clients interests first. Your clients decisions concerning settlement will have ramifications for others besides them. If your client is a plaintiff, your own fee may well be involved. If your client is a defendant, the interests of an insurance company (which could be paying your fee) also will be implicated. Your job, however, is to put consideration of those interests aside and advise your clients based solely on what you believe to be in their best interests. See Rules of Conduct 1.08(e), 1.06, cmt. 1. VIII. A. TRYING A MATTER Prepare, Prepare, Prepare

If you have followed the advice I gave you earlier, you should be in a position to get any case that has not settled ready for trial. You should have conducted an adequate factual investigation and researched the applicable law long ago. There remain, however, a variety of measures that you need to employ to get ready for trial over and above those general preparatory activities. Whole books are available on trial preparation, which I will not try to paraphrase here. A few of the more important matters you must attend to are the following: Contact Cooperative Witnesses Beforehand and, if possible, put them on call. For a number of reasons, you may want to issue subpoenas for these witnesses, even though they are friendly. Frequently witnesses want the cover provided by a subpoena to placate the party their testimony will harm or the witnesss irate employer. Then, too, if you fail to subpoena a witness and he or she does not appear, you may not be able to get a continuance because TRCP 252 requires you to have used diligence in seeking to procure his or her testimony. See Middleton v. Vaughn, 530 S.W. ad 925 (Tex. Civ. App. Waco 1975, no writ). Issue Subpoenas for other witnesses the week ahead. Summarize Depositions. There is no other way to

You, Too, Can Be Sued - Part I

147

learn what is in them. (If Appropriate) Prepare a Chronology of Events. A complicated fact situation may compel you to list each event in chronological order. Indeed, this step may be necessary to understand a complicated case at the outset. The chronology may require that you indicate contested matters. Documents are especially good for fixing the events. Prepare A Proof Outline. A proof outline is your assurance that you have collected evidence to prove each of the facts requiring proof in order to establish your cause of action or defense. It consists of a column containing the elements of your cause of action or defense and a corresponding column containing the evidence that you propose to use to prove it. The outline should include the bases for admission of evidence that you suspect will be objected to by the opposing party, including supporting authorities. Prepare Other Stages of Trial. Make whatever voir dire notes you intend to use. Prepare motions in limine with respect to matters that you wish to keep from the jury, as well as objections to evidence which you anticipate will be offered by the opposing party (supported by authorities). Prepare (at least in a general way) what will go into the charge and the closing argument. Prepare a Trial Notebook. It is a good idea to prepare an indexed notebook in a ring binder containing the appropriate steps in your preparation for trial and other materials that may be needed. The notebook might contain: C Addresses and telephone numbers of all your witnesses. C Deposition summaries, witness statements, and interview notes pertaining to each witness you intend to call. C Proof outline. Also, a list showing the witness order you plan. C Voir dire and jury argument notes. C Proposed portions of the courts charge. C Pleadings and other legal papers. C List of exhibits. C Legal authorities for charge, evidence, etc. Preserve Error. Become an absolute bear on the

procedures needed to preserve error, particularly with respect to the erroneous admission or exclusion of evidence. Remember that objections usually must be both timely and specific in order to preserve error. TRAP 33.1. It is bad enough to have your well-prepared case devastated by the judges evidentiary rulings without having those errors stand up on appeal because you did not know how to preserve them. Prepare Appropriately for the Degree of Complexity of the Case. The foregoing steps are appropriate for a jury trial involving a substantial, but not huge, degree of complexity. The amount of preparation obviously must be governed by the degree of difficulty of the case, the amount in controversy, and other factors. B. Beware of the Unkept Promise of Settlement

It happens often enough for you to be concerned. Opposing counsel assures you that a matter will settle but at the last moment changes his or her mind and says that the case will have to be tried. Perhaps opposing counsels client balked at the settlement at the last minute, necessitating counsels change of position. It is possible, however, that you were sandbagged by an attorney looking for an extra edge. In either event, however, there is a substantial likelihood that you will not be able to obtain a continuance, and the resulting less-than-stellar performance on your part can result in malpractice exposure. Until the ink is dry on the settlement documents, it is best to behave in accordance with the maxim of the noted legal philosopher, Yogi Berra: It aint over til its over! IX. APPEALING A MATTER

This is not the place to offer a course in appellate practice; but there are a few things you need to remember from a malpractice perspective. First, before plunging ahead with an appeal, give careful consideration to whether new counsel should be employed to prosecute it. Appellate advocacy is itself a specialty of sorts. Just because you are a good trial lawyer does not mean that you are the right person to handle an appeal. Be particularly careful about taking on an appeal if you lost at trial. It is extremely difficult

148

You, Too, Can Be Sued - Part I

to take a dispassionate look at your unsuccessful trial strategy and create a more successful approach to the case on appeal. Yet such a dispassionate look is just what is needed. Whatever you do, clarify whether or not you will act as appellate counsel with your client ASAP. Until you are discharged (or allowed to withdraw) it is you who will be obliged to take all reasonable measures to preserve your clients appellate rights and remedies. Whether or not you decide to act as appellate counsel, if your client will be an appellant it is essential that a notice of appeal be filed with trial court and a copy with the clerk of the court of appeals to which the appeal will be taken. TRAP 25.1(a),(e). This filing must be done within the time limits set out in TRAP 26.1 or 26.2 as applicable. Absent a timely, granted request for an extension of time, (TRAP 26.3), missing this deadline will cost your client the right to appeal. See Butts v. Capitol City Nursing Home, Inc., 705 S.W.2d 696 (Tex. 1986). Do not assume that this will be taken care of by new counsel for your (former) client unless you have been formally discharged. Instead, be sure to notify your client of this requirement (including the last date for compliance with it) and obtain a clear statement from the client concerning your responsibilities, if any, for meeting the deadline. If you agree to act as appellate counsel for an appellant, be sure to: Obtain a Full Statement of Facts. Errors not shown in the record on appeal are waived. Frequently, only the statement of facts reveals those errors. Be Selective to Be Effective. Not every preserved error is worth arguing on appeal. Be critical and selective in those you choose to present. Cite Authorities. Arguments not properly supported in your brief are waived. See Clone Component Distributors, Inc. v. State, 819 S.W.2d 593 (Tex. App.Dallas, 1991, no writ). Observe Deadlines. Failure to timely perfect an appeal by filing a notice of appeal results in a loss of the right to appeal. TRAP 25.1 (b), 26. Failure to timely file a statement of facts or brief on appeal can cost you and your client the right to present your case. TRAP 38.8. If you agree to act as appellate counsel for an appellee, be sure to: Check Your Opponents Designated Statement of

Facts. Be sure that material helpful to your clients case has not been omitted. See TRAP 34.5, 34.6. Check for Points for Cross-Appeal. If there are any, begin work on them at once. See TRAP 38.2. Monitor Your Opponents Performance for Compliance with the Tex. R. App. P. Has he or she missed deadlines? Do those lapses justify striking a brief or other material filed of record? Do they justify dismissing the appeal? Review Your Opponents Brief Carefully. This truism extends not just to the legal arguments he or she has made but alsoand perhaps more importantlyto asserted but unpreserved errors, improper arguments (e.g., arguments based on materials not a matter of record), and unsupported arguments (those lacking legal authority). See TRAP 33. Remember: the easiest way to win on appeal is to convince the appellate court not to consider your opponents arguments on their merits. Be Sure Your Own Brief is Timely and Proper. Failure to do so can result in waiver, just as is true for appellants. In the event you commit malpractice in connection with an appeal, remember that the suit within a suit rule (discussed above in Storm Clouds on the Liability Horizon) is still available to you. In this context the rule requires your client to show that if you had handled the matter properly, the client would have achieved a better result. Generally, this is a question of law for the court, not a question of fact for the jury. See Millhouse v. Wiesenthal, 775 S.W.2d 626 (Tex. 1989). X. PARTING WORDS A. What to Do When Youre Fired or Withdraw

More lawyers get in trouble when the attorney/client relationship is terminated than seems reasonable. The ethical rules are really quite simple: Surrender The File. You must give the client the file; you cannot withhold it in order to secure payment of fees owed to you. Rule of Conduct 1.15(d), cmt. 9; Tex. Op. 395 (43 TEX. B.J. 560 (1980) and Tex. Op. 411 (47 TEX. B.J. 47 (1984). If you are entitled to a fee, file a plea in

You, Too, Can Be Sued - Part I

149

intervention, asserting whatever claim you have. See Mandell & Wright v. Thomas, 441 S.W.2d 841 (Tex. 1969). Cooperate with Your Successor. Whatever you do, do not obstruct efforts by successor counsel to represent your former client effectively. You may feel abused by your former client; you may feel that successor counsel stole the case from you; and you may be entirely justified in those sentiments. But do not be overcome by them. The worst thing you can do is to give your former client and successor counsel some basis for arguing that improper conduct on your part justifies either abrogating your fee or holding you responsible for a less-than-satisfactory outcome that really is their fault. Take Reasonable Measures to Protect the Former Clients Interests. Moreover, you cannot leave the client high and dry, but must take all necessary steps to be sure that the clients interests are protected. In that regard, whatever you do, do not let matters in your clients case that require immediate attention go unattended because you are in the process of withdrawing. If those matters are resolved adversely to your clients interests before your withdrawal is approved, your client will be able to demonstrate a clear case of neglect. See Lipton v. Boesky, 313 N.W.2d 163 (Mich. App. 1981). At a minimum, seek a continuance of such matters sufficient to provide your client with a reasonable opportunity to secure new counsel. Return Unearned Portion of Fee. Finally, you must return to the client immediately any unearned portion of a retainer that has been given to you. Rule of Conduct 1.15(d). B. What About Your Fee?

When you withdraw or are discharged in a matter, what becomes of your right to a fee? The answer depends on the reasons for withdrawal. In Texas, if a lawyer abandons a client without just cause, or commits a material breach of the contract of employment, he or she forfeits all right to compensation. See Royden v. Ardoin, 331 S.W.2d 206 (Tex. 1960); Staples v. McKnight, 763 S.W.2d 914 (Tex. App.Dallas 1988, writ denied). Even if the client has breached a contract of employment (typically by not paying the agreedupon fee), if the lawyer also has breached it, recovery is available, if at all, only in quantum

meruit. See Kelly v. Murphy, 630 S.W.2d 759 (Tex. App.Houston [1st Dist.] 1982, writ refd n.r.e.). Additionally, if a client can show good cause for discharge, a lawyer can recover, if at all, only in quantum meruit. See Rocha v. Ahmad, 676 S.W.2d 149 (Tex. App.San Antonio 1984, writ dismd). In such cases, recovery of any fee is frequently denied. Among the matters found to constitute good cause for denying an attorney any fee, whether under a fee agreement or in quantum meruit, are: C A pattern of delay, inattention, and neglect. Rocha, supra. C Representing conflicting interests. See W.C. Turnbow Petroleum Corp. v. Fulton, 199 S.W.2d 263 (Tex. Civ. App.Texarkana 1947, writ refd n.r.e.). C A finding that the fee called for by the agreement was excessive. See Braselton v. Nicolas and Morris, 557 S.W.2d 187 (Tex. Civ. App.Corpus Christi 1977, no writ); Nolan v. Foreman, 665 F.2d 738 (5th Cir. 1982). C Collusion of the attorney with an adverse party. See Malry v. Grant, 48 S.W. 614 (Tex. Civ. App. 1898, no writ) (citing Heilbroner v. Douglass, 32 Tex. 215 (1869)). Finally, if a lawyer is discharged by a client without just cause, the lawyer may recover on his or her fee agreement, even if the result is that the client will have to pay two fees. See Mandell & Wright v. Thomas, 441 S.W.2d 841 (Tex. 1969). Before pressing a former client for a fee, you should keep several things in mind. First, is it worth the trouble? Remember that an action for malpractice is a compulsory counterclaim to a suit for fees. Such a claim might not be brought if you do not provoke it. Is it worth the risk? Second, do not ask for more than you deserve. Remember that the circumstances under which you are entitled to your full fee are relatively limited. Recent Texas authority suggests that efforts to charge or collect fees in excess of those to which a lawyer is entitled states a claim for malpractice and breach of fiduciary duty. See Jampole v. Matthews, 857 S.W.2d 53 (Tex. App.Houston [1st Dist.], 1993, writ denied). And third, understand that Mandell & Wright may

150

You, Too, Can Be Sued - Part I

not be good law. Although lawyers invoke Mandell & Wright every day, there is a widespread recognition that its result can be unconscionable in some circumstances. See Johnson v. California Real Estate Investment Trust, 912 F.2d 788 (5th Cir. 1990) (applying but severely criticizing rule). There is a good chance that such a fee might be found to be unconscionable under Rule of Conduct 1.04(a) or might be struck down as a breach of a lawyers fiduciary responsibilities to his or her client, or as an undue restriction on the clients right to discharge counsel. I wish to acknowledge the special debt I owe to the late Professor Eugene L.
Acknowledgment::

Smith of the University of Houston Law Center. Professor Smith gave me the right to draw on his earlier work entitled Rules to Help You Get in Closer Contact with Your Grievance Committee and Malpractice Insurer in preparing my paper. I relied on it on numerous occasions, but most notably in Section I, Before the Rules, Some Facts of Life, where credit for all of the wit and most of the substance rightfully belongs to him. R.P.S.
Authors Note: This paper touches only on the more common and important malpractice concerns. For fuller and more traditional treatments, you should consult the sources listed in the bibliography for this chapter.