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.

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