Texas PJC Malpractice 2022

PJC 61.6

N ONMEDICAL M ALPRACTICE —T HEORIES OF R ECOVERY

PJC 61.6

Breach of Fiduciary Duty of Nonmedical Professional (Comment)

Breach of fiduciary duty distinguished from professional negligence. Whereas all attorney-client relationships involve a recognized fiduciary relationship, not all claims by the client against his attorney involve a breach of a fiduciary duty. See Won Pak v. Harris , 313 S.W.3d 454, 458 (Tex. App.—Dallas 2010, pet. denied) (“Even if a complaint implicates a lawyer’s fiduciary duties, it does not necessarily follow that such a complaint is actionable apart from a negligence claim.”). As both a fiduciary and a lawyer, an attorney owes his or her client a duty to act in good faith, with abso lute candor, openness, honesty, and loyalty to the client. Won Pak , 313 S.W.3d at 458 (“[T]he standard of care in attorney negligence cases often refers to and is defined by the characteristics inherent in the fiduciary duty between the lawyer and the client.”). A breach of fiduciary duty can involve a failure by the attorney to disclose conflicts of interest, failure to deliver funds belonging to the client, improper use of client con fidences, or self-dealing. Aiken v. Hancock , 115 S.W.3d 26, 28 (Tex. App.—San Anto nio 2003, pet. denied); Goffney v. Rabson , 56 S.W.3d 186, 193 (Tex. App.—Houston [14th Dist.] 2001, pet. denied). The crux of a claim for breach of a fiduciary duty is whether the attorney improperly benefited from the attorney-client relationship by engaging in self-dealing or conduct that subordinates the client’s interests to those of the attorney. Kemp v. Jensen , 329 S.W.3d 866, 871–72 (Tex. App.—Eastland 2010, pet. denied); Gibson v. Ellis , 126 S.W.3d 324, 330 (Tex. App.—Dallas 2004, no pet.); Aiken, 115 S.W.3d at 28; Kimleco Petroleum, Inc. v. Morrison & Shelton , 91 S.W.3d 921, 923–24 (Tex. App.—Fort Worth 2002, pet. denied). The benefit need not be mon etary. In contrast, a professional negligence claim involves the failure by the attorney to exercise that degree of care, skill, and diligence in representing the client’s interests as attorneys of ordinary skill and knowledge commonly possess and exercise. Kimleco Petroleum, Inc. , 91 S.W.3d at 923–24; Sullivan v. Bickel & Brewer , 943 S.W.2d 477, 481 (Tex. App.—Dallas 1995, writ denied). The crux of a professional negligence complaint is whether the attorney adequately represented the client. Greathouse v. McConnell , 982 S.W.2d 165, 172 (Tex. App.—Houston [1st Dist.] 1998, pet. denied). Pattern questions submitting a breach of fiduciary duty are found in the current edi tion of State Bar of Texas, Texas Pattern Jury Charges—Business, Consumer, Insur ance & Employment ch. 104, although modification may be required based on the attorney-client relationship. The pattern question for a professional negligence claim against an attorney is found at PJC 61.5. Improper fracturing. Pleading a claim for breach of a fiduciary duty that is actu ally a claim of professional negligence is referred to as “fracturing” and is improper. See Won Pak , 313 S.W.3d at 457; Duerr v. Brown , 262 S.W.3d 63, 70 (Tex. App.— Houston [14th Dist.] 2008, no pet.); Trousdale v. Henry , 261 S.W.3d 221, 227 (Tex. App.—Houston [14th Dist.] 2008, pet. denied). Generally, a plaintiff may not convert

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