This week we have a raft of Texas Cases  Here attorney was appointed to represent convict father in a parental rights termination case.  Reading the facts, we believe that the court would have terminated the convict’s rights anyway, but it was really unhappy about the representation.

"In its opinion, the Court of Appeals noted that Wilson did not put on evidence at the hearing; did not consult with Brice; performed only a "perfunctory cross-examination of Denton," which led to the admission of evidence that Brice had been arrested for harassment, stalking, DWI, indecent exposure, and several cases of indecency with a child; did not request a writ of habeas corpus ad testificandum; did not interview potential witnesses; did not request a jury; and did not investigate the conviction that was the basis for termination. Id. at 140-42. The Court of Appeals also stated, "[N]othing in the record suggests that [Wilson] requested a continuance from the trial court." Id. at 142"

But, nevertheless, the legal malpractice case foundered.  "Brice subsequently filed suit against Wilson for legal malpractice. Brice alleged that Wilson was negligent or grossly negligent in failing to request a continuance; failing to consult with him to determine the facts and prepare a defense; failing to investigate the conviction that was the basis for termination; failing to challenge the pleadings and to present evidence favorable to him; failing to request a writ of habeas corpus ad testificandum; failing to investigate the facts of the case, including the failure to contact Brice’s mother and sister, who Brice asserts would have testified on his behalf; and failing to determine that Brice wanted a jury trial. Brice contended that he "suffered the severe damages of not having the effective assistance of counsel at the final hearing on the suit to terminate his parental rights to his two minor children[,]" as well as "physical injuries and the emotional pain and suffering from losing his parental rights to his two minor children." In supplemental petitions, Brice added MacLean, Boulware, and the law partnership of MacLean & Boulware as defendants under theories of agency; negligent hiring, supervision, or retention; and respondeat superior.

The trial court disposition
Wilson, MacLean, and Boulware filed no-evidence motions for summary judgment, in which they asserted that Brice lacked evidence of a breach of duty owed pursuant to the attorney-client relationship, and that Brice had failed to produce any evidence that the alleged breach of duty proximately caused the alleged harm. Brice filed responses, to which he attached copies of the opinion in which the Court of Appeals held that he received ineffective assistance of counsel, a notice from the Supreme Court stating that it had denied review of the case, and a portion of Tex. R. Civ. P. 166a. Brice also filed motions for issuance of a writ of habeas corpus ad testificandum to enable him to appear at the hearings on the motions for summary judgment filed by Wilson, MacLean, and Boulware. The trial court denied Brice’s motions for issuance of a writ of habeas corpus ad testificandum. The trial court granted the motions for summary judgment and ordered that Brice take nothing from Wilson, MacLean, and Boulware.

No evidence of damages fatal to claim. The Court of Appeals affirmed the summary judgment, finding that Brice had failed to present evidence of damages, which was an essential element of his legal malpractice claim and of each other claim he presented. "

While diversity of citizenship may be an appropriate base for jurisdiction,  42 USC 1983 is not, at least in Texas  There, the attorney is not a state actor:

"In Combs v. City of Dallas, 3:06-CV-0074-P, 2006 U.S. Dist. Lexis 92445 (N.D. Tex. 2006), the client sought to sue the attorneys who represented him during his state and federal criminal prosecutions. The court held that neither appointed nor retained counsel acts under color of state law in representing a defendant during criminal proceeding. See Polk County v. Dodson, 454 U.S. 312, 324 (1981) (public defender does not act under color of state law when performing a lawyer’s traditional functions as counsel to a defendant in a criminal case); Mills v. Criminal Dist. Court No. 3, 837 F.2d 677, 678 (5th Cir. 1988) (court appointed counsel are not official state actors); Russell v. Millsap, 781 F.2d 381, 383 (5th Cir. 1985) (retained counsel does not act under color of state law). The same rationale applies to appointed or retained counsel in a federal criminal case. McLeod v. Knowles, 2006 WL 1738286, *1 (5th Cir. 2006) (unpublished per curiam) (extends Polk County v. Dodson to a Bivens action against court-appointed counsel). As such the conduct of criminal defense attorneys in representing a federal criminal defendant is not cognizable under 42 U.S.C. § 1983 or as a Bivens action.

The client alleged that one of the attorneys had conspired with the prosecutors. Assuming that this sufficiently alleged action under color of law, the court nonetheless found that the legal malpractice claim was barred because it inherently challenged the validity of the client’s conviction:

In Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), the Supreme Court held that a party may not maintain a civil rights action based on the legality of a prior criminal proceeding unless a state court or federal habeas court has determined that the terms of confinement are in fact invalid. This rule applies equally to Bivens actions. Stephenson v. Reno, 28 F.3d 26, 27 (5th Cir. 1994). The critical inquiry is whether a judgment in favor of the plaintiff in the civil action would "necessarily imply the invalidity of his conviction or sentence." Heck, 512 U.S. at 486-87. If so, the claim is barred unless the conviction has been reversed or declared invalid. Id.

[. . . Plaintiff’s criminal conviction has not been reversed on direct appeal, expunged by executive order, or called into question by a federal writ of habeas corpus. . . . ] "

As in New York, a criminal defendant may not successfully sue his criminal defense attorney absent a showing of "actual innocence"

Here is the Texas rule:

"In Butler v. Mason, No. 11-05-00273-CV, 2006 Tex. App. Lexis 10886 (Tex. App.—Eastland 2006), a convicted murderer attempted to bring a legal malpractice action against the attorney who represented him on direct appeal within the state court system and in state and federal habeas proceedings. The court found that the action was barred by Texas’ Peeler doctrine, under which plaintiffs who have been convicted of a criminal offense may negate the sole proximate cause bar to their claim for legal malpractice in connection with that conviction only if they have been exonerated on direct appeal, through post-conviction relief, or otherwise.

In 1998, the jury convicted Butler of murder and aggravated assault. Butler’s retained counsel, Harry Zimmerman, perfected an appeal but passed away before oral argument. Mason argued the appeals. Butler later retained Mason to file applications for both state and federal post-conviction writs of habeas corpus. The Texas Court of Criminal Appeals denied the application in 2001. The federal application was dismissed as being time-barred in 2003.

In 2004, Butler filed this suit alleging that Mason was negligent in his handling of the applications for writs of habeas corpus and that Mason breached his contract with Butler. Butler sought a total of $6,000,000 as compensation for lost employment and as punitive damages. The trial court dismissed the case; the court of appeals affirmed:

In Peeler v. Hughes & Luce, 909 S.W.2d 494 (Tex. 1995), the Texas Supreme Court held:

Because of public policy, we side with the majority of courts and hold that plaintiffs who have been convicted of a criminal offense may negate the sole proximate cause bar to their claim for legal malpractice in connection with that conviction only if they have been exonerated on direct appeal, through post-conviction relief, or otherwise. While we agree with the other state courts that public policy prohibits convicts from profiting from their illegal conduct, we also believe that allowing civil recovery for convicts impermissibly shifts responsibility for the crime away from the convict. This opportunity to shift much, if not all, of the punishment assessed against convicts for their criminal acts to their former attorneys, drastically diminishes the consequences of the convicts’ criminal conduct and seriously undermines our system of criminal justice. We therefore hold that, as a matter of law, it is the illegal conduct rather than the negligence of a convict’s counsel that is the cause in fact of any injuries flowing from the conviction, unless the conviction has been overturned (citation omitted). "

Another Texas case to illustrate the judgment rule in legal malpractice.

"Doing the best you can with what you have is a constant problem in unsettled areas of the law, particularly unsettled areas of statutory construction. Justice Keasler’s concurring opinion in this Court of Criminal Appeals case makes the point:

In Ex parte Chandler, we explained that “a reasonably prudent attorney in Texas is not constitutionally deficient if he relies upon pertinent judicial opinions in assessing the validity of a legal proposition.” Ex parte Chandler, 182 S.W.3d at 358. Moreover, because “‘what an attorney thinks the law is today may not be what a court decides tomorrow[,]’ . . . ‘the rule that an attorney is not liable for an error in judgment on an unsettled proposition of law is universally recognized.’“ Id. (quoting 3 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice § 18.1, at 2 (5th ed. 2000)). “[C]ounsel’s performance will be measured against the state of the law in effect during the time of trial and we will not find counsel ineffective where the claimed error is based upon unsettled law.” Ex parte Welch, 981 S.W.2d 183, 184 (Tex. Crim. App. 1998) (citing Vaughn v. State, 931 S.W.2d 564, 567 (Tex. Crim. App. 1996)). We also stated that “legal advice which only later proves to be incorrect does not normally fall below the objective standard of reasonableness under Strickland.” Ex parte Chandler, 182 S.W.3d at 359.

Roemer’s counsel’s legal advice was correct at the time he offered it. Counsel relied on the only available opinion dealing with the issue. “[T]he state of the law in effect during the time of trial,” Ex parte Welch, 981 S.W.2d at 184, consisted of a single opinion, which clearly resolved the issue against his client. Counsel thoroughly explained the legal issue and the effect of the court of appeals’ opinion to his client. But the final decision to accept the plea agreement was Roemer’s alone. It could not, therefore, be counsel’s judgment error. Roemer’s counsel’s actions fall squarely within our explanation of effective assistance of counsel in Ex parte Chandler.

Ex parte Roemer, 2007 Tex. Crim. App. Lexis 229 (Tex. Crim. App. 2007) (Keasler, J., concurring, joined by Hervey, J.). "

When a client comes to you to discuss a legal malpractice case, and mentions a bankruptcy, the first question to determine is whether the malpractice might have been pre- or post-petition.  If it was even arguably pre-petition, the bankrupt client must have listed a claim on the schedules.  If not, there can be no legal malpractice case, except by the trustee.

Here is a case from Texas:

"The bankruptcy court in San Antonio has rejected an attempt to bring an unscheduled legal malpractice claim post-confirmation:

It is undisputed that a bankruptcy debtor is required to schedule all assets and that there is a duty to amend which continues throughout the case. It is also undisputed that none of the Debtors scheduled a potential cause of action against Defendant in their bankruptcy schedules, even though Plaintiffs claim that their causes of action relate solely to prepetition conduct of Defendant. Although Plaintiffs contend that Defendant would not have scheduled causes of action against itself, the undisputed evidence shows that Plaintiffs were also represented by counsel other than Defendant at all relevant times. Not only were there outside counsel prior to and at the commencement of the bankruptcy cases, but on June 10, 2004, the Debtors filed an Application to Employ the Law Firm of Langley & Banack as Co-Counsel for the Debtors. The employment of Langley & Banack was approved by this Court’s Order on July 15, 2004. The Plan and Disclosure Statement were filed by Langley & Banack on or about December 29, 2004, and the confirmation hearing took place on March 2, 2005. If the directors, officers and non-Defendant attorneys of the Plaintiffs wished to assert claims against Defendant, they had ample opportunity to schedule such an asset and specifically reserve it in the Plan. Instead, a general retention clause was merely placed in the Plan and Disclosure Statement which purported to retain any claims which the Plaintiffs might have against any of their professionals. "

Here is a Texas Case which illustrates the difficulty in plaintiff’s summary judgment in legal malpractice.  The court says that expert’s affidavit is ‘conclusory", but what it really means is that it cannot decide on whether the mistake was all that apparent.

"What “appears” to an expert to be an “inescapable conclusion” is not so apparent to a court. In Tummel & Casso v. Snyder, the lawyers sued to recover fees and the client counterclaimed for legal malpractice. The clients then filed a “traditional” motion for partial summary judgment, alleging that the lawyers had committed legal malpractice in connection with their representation of the clients in two legal matters. Specifically, the clients alleged that appellants committed malpractice by pursuing (on the clients’ behalf) the enforcement of a non-compete agreement against Dr. Michael Sweeney (“the Sweeney litigation”), despite the absence of any chance of successful enforcement because there was no written agreement. Secondly, the clients alleged that the lawyers committed malpractice by filing a lawsuit to protect Dr. Snyder’s right to continue practicing at a surgery center, despite the absence of any chance of success because Dr. Snyder had failed to exhaust his administrative remedies. In support of their motion, the clients attached numerous documents, including copies of the unsigned non-compete agreement. "

The trial court entered summary judgment against the lawyers on the legal malpractice claims. They appealed. The Corpus Christi Court of Appeals reversed, finding the affidavit of the clients’ legal malpractice expert to be conclusory and, thus, insufficient to support summary judgment against the lawyers:

Continuous representation of a client by an attorney allows a law suit within [in NY – 3 years]  a statutory period of time.  That is, the statute of limitations does not kick in until the reprsentation has ended.  When this happens is the subject of many cases.  Here is a Texas case which holds that in a divorce legal malpractice, transactional work on collecting or enforcing the decree does not count as continuous representation.

"’Legal work incident to enforcement of divorce decree does not trigger Hughes tolling rule
This entry was posted on 4/28/2007 9:48 PM and is filed under Limitations and Tolling.

Limitations on a client’s claim that she received erroneous legal advice from an attorney that caused her to receive an inadequate share of the marital estate in her divorce decree was not tolled by the Hughes rule, which tolls limitations on a legal malpractice action in some instances of continuous representation. In Brennan v. Manning, No. 07-06-0041-CV, (Tex. App.—Amarillo April 12, 2007), the court found that the lawyer’s post-decree work on enforcement issues was not enough to trigger the Hughes tolling rule.

The court first determined when the malpractice claim accrued, applying the legal injury rule to find that the claim accrued when the divorce decree was entered:

Legal malpractice claims are governed by a two year statute of limitations. Tex. Civ. Prac. & Rem.Code Ann. § 16.003(a); Apex Towing Co. v. Tolin, 41 S.W.3d 118, 120 (Tex. 2001). A legal malpractice claim accrues when the legal injury occurs, unless there is a legal basis for tolling limitations. Hughes v. Mahaney & Higgins, 821 S.W.2d 154, 156 (Tex. 1991). Appellant’s legal malpractice claim centers upon her allegation that she received an inadequate division of community property when Manning incorrectly advised her that she was not entitled to a share of referral or contingency fees from lawsuits pending at the time of her divorce. Therefore, Appellant’s legal malpractice claim accrued when she sustained a legal injury, which would have been at the time the community property was divided by the entry of a decree of divorce. Smith v. McKinney, 792 S.W.2d 740, 742 (Tex. App.—Houston [14th Dist.] 1990, writ denied). "

New York Lawyer [subscription] relates this story:

"Local Lawyer’s Conniption Fit at Getting Sued Gets Him Sanctioned

New York Lawyer
May 4, 2007

By Henry Gottlieb
New Jersey Law Journal

When a lawyer is served with a malpractice suit, throwing the complaint on the floor, ejecting the process server for trespassing and yelling "call 911" are possible responses.

But they’re wrong, a Mercer County, N.J., judge says in a $403 sanction order against Robert Conroy, one of the state’s leading health care lawyers.

Conroy was in his Bridgewater office on March 20, when Guaranteed Subpoena Service Inc. sent a representative to serve a malpractice suit by a doctor Conroy had represented in a complicated transaction.

But Guaranteed reported back to the plaintiff’s lawyer: "Not served! Entity was evading service. Threw service at server, stating he was trespassing and would be arrested if he didn’t leave."

Conroy says that’s not what happened. He says the firm accepted service at the reception desk but the server barged his way into private areas of the office, like a dangerous intruder.

Even so, Superior Court Judge Paul Koenig Jr. found Conroy at fault and called the conduct, "ill-advised, unlawyerlike, and in my opinion, even outrageous."

"He chose to intimidate the process server, someone who works, you know, in close connection with the attorneys to serve court process and court papers," the judge said in an April 11 ruling. "Any attorney should not take such a position, however unhappy he is with the circumstances."

"He’s a licensed attorney," the judge continued. "He has an obligation to act professionally. Throwing documents — throwing court documents doesn’t sound professional."