Monday, August 29, 2011

Can a Legal Malpractice Suit Also Be a DTPA Suit?


This is notwithstanding the fact that since 1995, the DTPA has had a provision excluding applicability to claims "for damages based on the rendering of a professional service, the essence of which is the providing of advice, judgment, or opinion, or similar professional skill."    Section 17.49(c).    That provision does make the DTPA inapplicable to a broad variety of typical legal malpractices cases, and it seems that it has led some in the bench and bar to conclude that the DTPA is wholly inapplicable to legal malpractice cases. However, that is not the case.

For one thing, other provisions of the DTPA provide for liability in connection with rendering services if "fraud-type" conduct is committed--that is, express misrepresentation of a material fact or failure to disclose material information, where such actions or omissions cannot be characterized as advice, judgment or opinion.    See, e.g.,  Gibson v. Ellis, 58 S.W. 3d 818 (Tex. App.--Dallas, 2001, no pet.).    This would likely include, for instance, failure to advise the client that the lawyer is inexperienced in the sort of matter that the client brought to him or where the lawyer affirmatively misrepresented his experience.

Additionally, a legal malpractice case might involve conduct that could be characterized as constituting an unconscionable act or course of action that could not be characterized as advice, judgment, or opinion.    Cases involving unconscionable actions or courses of actions often involve a party of greater sophistication or power taking advantage of someone with less of those attributes.    Of course, that may often be the case in many attorney-client relationships because of the fiduciary nature of the relationship.

Consequently, there exists a fairly broad array of legal malpractice cases that may also be legitimately characterized as DTPA cases.

Monday, August 8, 2011

In Legal Malpractice Arising From Botched Litigation, When Does the Statute of Limitations Start to Run?

The statute of limitations starts to run after the underlying litigation, including all appeals, is concluded.

This holding is somewhat counter-intuitive; with most torts, the statute of limitations starts to run when the tortious conduct is committed.   In the case of legal malpractice arising from negligently handled litigation, the tortious conduct itself does not immediately trigger the running of the statute of limitations.

That is because of two principal factors:    First, until the litigation ends, the nature of the damages, if any, flowing from the tortious conduct is not known.  Secondly, if the statute were deemed to begin running at the time of the commission of the negligent conduct, it would force the legal malpractice plaintiff to take potentially conflicting positions in the underlying case--which that party presumably would still be trying to win--and the legal malpractice case, where the plaintiff would be forced to argue that his underlying case had been lost or damaged by the negligence.    Indeed, the positions that such a legal malpractice plaintiff would be forced to take in the malpractice case could be used against him in the case giving rise to the malpractice claim.

In order to avoid that unfairness--and also in order to avoid forcing litigation to occur that subsequent events might prove to be unnecessary--the courts have settled on the rule that the statute of limitations in such cases does not begin to run until the underlying litigation, including all appeals, are over.    See, Apex Towing Co. v. Tolin, 41 S.W.3d 118 (Tex. 2001); Sanchez v. Hastings, 898 S.W. 2d 287 (Tex. 1995); and Hughes v. Mahaney & Higgins, 821 S.W. 2d 154, 157 (Tex. 1991).

It might also be noted that this is one of the few areas of Texas law, over the last 20 years, where there has been a more pro-plaintiff interpretation of limitations law.