Texas PJC Malpractice 2022

N ONMEDICAL M ALPRACTICE —T HEORIES OF R ECOVERY

PJC 61.11

PJC 61.11

Attorney-Client Relationship—Existence in Dispute

QUESTION ______ At the time in question, was Paul Payne a client of Andy Attorney ’s with respect to the matter in dispute? An attorney-client relationship exists if, when viewed objectively from what the parties said and did, the attorney has agreed, expressly or impliedly, to ren der legal services to the person claiming such relationship. Answer “Yes” or “No.” Answer: _______________ COMMENT When to use. PJC 61.11 may be used if the existence of a professional relation ship between the plaintiff and the defendant-attorney is in dispute. Relationship arises out of contract. An attorney is liable to the client only if there is a professional relationship arising out of a contract, express or implied, that the attorney will represent the client with proper professional skill and there is a negligent breach of that duty proximately causing damages. See Dickey v. Jansen , 731 S.W.2d 581 (Tex. App.—Houston [1st Dist.] 1987, writ ref’d n.r.e.); Bell v. Manning , 613 S.W.2d 335 (Tex. App.—Tyler 1981, writ ref’d n.r.e.). Cf. Parker v. Carnahan , 772 S.W.2d 151 (Tex. App.—Texarkana 1989, writ denied) (attorney may still be negligent for failing to advise a party of the fact that the attorney was not representing such party, if the circumstances led the party to believe that the attorney was representing her). See also PJC 61.4 for cases involving negligent misrepresentation. “To determine if there was an agreement or meeting of the minds one must use objective standards of what the parties said and did and not look to their subjective states of mind.” Vinson & Elkins v. Moran , 946 S.W.2d 381, 405 (Tex. App.—Houston [14th Dist.] 1997, writ dism’d by agr.) (error not to instruct jury that “agreed” meant “a meeting of the minds which must be determined from the ‘objective manifestations made by one party to another and not by the subjective intent of any one party not manifested to the other’”). Attorney liability to nonclient for misrepresentations. The rule of privity gen erally prevents nonclients from suing an attorney for legal malpractice. An attorney may be liable to a nonclient for negligent misrepresentation where the attorney has “manifest awareness of the nonclient’s reliance on the misrepresentation” and the attorney intends that the nonclient rely on the misrepresentation. McCamish, Martin, Brown & Loeffler v. F.E. Appling Interests , 991 S.W.2d 787, 792 (Tex. 1999).

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