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."

Reported today from Bankruptcy Court:

In re: Ernst, 04-12291
Decided: April 27, 2007

"UNDER A retainer agreement allowing interest on unpaid fees, the lawyer providing legal services to the debtor brought a state action to collect $72,274 in unpaid legal fees from the debtor and his wife. Shortly after entry of an award in the lawyer’s favor, the debtors sought Chapter 13 bankruptcy protection. In disallowing the attorney-creditor’s claim for fees incurred in collecting on the debtors’ bill, the bankruptcy court noted that the Appellate Division, First Department in Ween v. Dow held that fees associated with the collection of unpaid legal fees could not be recovered by an attorney unless the applicable retainer agreement also gave the client the right to recover attorney fees. In Travelers Casualty & Surety Co. of America v. Pacific Gas & Electric Co. the U.S. Supreme Court emphasized the requirement that bankruptcy courts consult state law in determining the validity of most claims. In rejecting the lawyer’s claim, the bankruptcy court noted that the Ween court emphatically declared that a retainer provision identical that used by the lawyer was unenforceable.

"This decision granting summary judgment to the Debtors on their claim objection and disallowing a claim by an attorney-creditor for fees incurred in collecting a bill owed by his former client relies heavily on two recent case law developments – the first in the Appellate Division of the New York State Supreme Court holding that claims such as this one are not enforceable and the second decided last month by the United States Supreme Court emphasizing the requirement that bankruptcy courts consult state law in determining the validity of most claims. Both decisions involve the same underlying subject matter – the contractual right of an attorney to recover counsel fees from a third party. When considered together, these cases compel granting Debtors’ Motion for Summary Judgment and disallowing the attorney-creditor’s claim. "

Thomas Liotti, who has of late been pushing the bounds of criminal defendant representation, and has, incidently, sued the Nassau County DA, is in the news for an inventive investigation. 

His client was accused of abusing a child.  The child and its parents were the subject of a neglect proceeding in Family Court, and Liotti used that proceeding to generate statements exonorating his criminal defendant.  Result?  Lots of outrage.

From the NYLJ

"A Nassau judge has declined to disqualify from a criminal case a defense attorney who took statements from prosecution witnesses without the permission or presence of their attorneys in a related Family Court matter. In November 2005, the prosecutor filed an information charging Mr. Quiroz, 54, of Freeport, with abusing a 16-year-old retarded girl. Mr. Liotti denied that the girl was retarded.

In February 2006, the Nassau County Department of Social Services brought a neglect motion in Family Court against the alleged victim’s mother. The county also commenced a proceeding against Mr. Quiroz. Mr. Liotti served as Mr. Quiroz’s attorney in both matters.

Family Court appointed Steven Herman, a solo practitioner in Rockville Center, as law guardian to represent the girl and Connie Gonzalez, of Legal Aid in Hempstead, to represent the mother.

On Oct. 16, 2006, Mr. Liotti wrote to the district attorney asking that the criminal charges against his client be dismissed. He submitted affidavits, dated Oct. 12, in which the girl recanted her accusation and the mother stated that the alleged incident could not have occurred.

Judge Kluewer said that the record "amply demonstrated" that Mr. Liotti did not get the consent of either Mr. Herman or Ms. Gonzalez before communicating with their clients.

Mr. Herman moved in Family Court to disqualify Mr. Liotti on the grounds he had violated DR 7-104 of the state’s Code of Professional Responsibility. That provision prohibits an attorney from communicating with an opposing party that the attorney knows to be represented by counsel, unless the attorney has secured the prior consent of the opposing party’s counsel.

Mr. Herman also sought to preclude the use of the statements.

Judge Hope S. Zimmerman, now an acting Supreme Court justice (See Profile), ruled that Mr. Liotti had violated the alleged victim’s due process rights and disqualified him from representing Mr. Quiroz in Family Court.

Mr. Liotti appealed to the Appellate Division, Second Department, which has stayed the Family Court order pending the resolution of the criminal matter.

Meanwhile, the district attorney’s office moved for virtually identical relief in District Court. It argued that Mr. Liotti should be disqualified in light of his attempted use of "improper communications" to seek a dismissal of the criminal matter. Further, the district attorney asserted that it would be contrary to the interest of justice to allow the "product of this improper conduct" to be used.

The prosecutor also suggested that Mr. Liotti might have to appear as a witness "in order to determine the genuineness and circumstances of the purported recantations."

In response, Mr. Liotti argued that neither the girl nor her mother were a "party" to the criminal case. He noted that the girl has turned 18 and was no longer entitled to representation by the law guardian.

Mr. Liotti also claimed that because his associates, and not him personally, appeared in Family Court, he was "not aware" that the girl and her mother had counsel.

Judge Kluewer said she was not persuaded by Mr. Liotti’s assertions that he did not know that counsel represented the girl and her mother.

"Given his experience, he certainly should have known of the representation, and neither he nor his associates should have communicated either with the alleged victim, or her mother without the consent of their respective attorneys," Judge Kluewer said.

But the judge agreed that neither the girl nor her mother was a party to the criminal action. And she said that the purposes of the two proceedings were different.

The aim of the criminal action was to determine if the defendant had committed a wrongful act and, if so, to assess blame and impose punishment, the judge said. In that context, a defense attorney is obliged to zealously represent his client and is authorized to conduct the "broadest possible range of pretrial investigation."

By contrast, the Family Court proceeding is essentially civil, Judge Kluewer said. "The real subject of a neglect petition is not the respondent against whom it is brought, but the child it concerns," she said.

The judge noted that the considerations underlying the Family Court ruling did not pertain to the matter before her. But she said that the prosecutor apparently was seeking to punish Mr. Liotti because of factors relevant to the Family Court proceeding.

"I am aware of no public policy or other consideration pertinent to this action that warrants interfering with Defendant’s fundamental, albeit not absolute, right to counsel of his own choosing," Judge Kluewer held.

She also declined to preclude statements Mr. Liotti obtained from the alleged victim and her mother.

"Apart from the fact that such a spectre implicates the constitutional right to confront the people’s witnesses with prior inconsistent statements in New York, exclusion of a statement is not an appropriate remedy for the misconduct about which the people complain," she said. "