Texas PJC Malpractice 2022

N ONMEDICAL M ALPRACTICE —T HEORIES OF R ECOVERY

PJC 61.12

Because an attorney’s fiduciary duty to a client covers contract negotiations, courts closely scrutinize agreements that attorneys enter into with clients during the existence of the attorney-client relationship. In re Davenport , 522 S.W.3d 452, 458 (Tex. 2017); Anglo-Dutch Petroleum International, Inc. v. Greenberg Peder, P.C. , 352 S.W.3d 445, 450 (Tex. 2011); Keck, Mahin & Cate v. National Union Fire Insurance Co. of Pitts burgh , 20 S.W.3d 692, 699 (Tex. 2000). The attorney bears the burden of establishing that such contracts are fair and reasonable. See Keck , 20 S.W.3d at 699; Celmer v. McGarry , 412 S.W.3d 691, 706 (Tex. App.—Dallas 2013, pet. denied). Liability questions normally place the burden of proof on the plaintiff, who is required to obtain an affirmative finding. When the burden shifts to the fiduciary, how ever, a “No” answer supports liability. Thus, when the burden is on the fiduciary to prove compliance with his fiduciary duties, subsequent questions that depend on a finding of breach of fiduciary duty may need to be conditioned on a “No” answer. This mirrors the recommended practice described in the comments to PJC 104.2. Caveat. If the burden of persuasion is on the fiduciary, it is unclear which party bears the burden of requesting the compliance question. Compare Moore v. Texas Bank & Trust Co. , 576 S.W.2d 691, 695 (Tex. App.—Eastland 1979), rev’d on other grounds , 595 S.W.2d 502 (Tex. 1980) (explaining that burden to properly request issue rests on plaintiff-beneficiary because it “is an element of the plaintiff’s theory of recovery”), with Cole v. Plummer , 559 S.W.2d 87, 89 (Tex. App.—Eastland 1977, writ ref’d n.r.e.) (fiduciary has burden of “securing a finding the confidential relationship was not breached”). Receipt of attorney’s fees. Receipt of agreed-on fees is not by itself an improper benefit. See Won Pak v. Harris , 313 S.W.3d 454, 458–59 (Tex. App.—Dallas 2010, pet. denied); Franks v. Roads , 310 S.W.3d 615, 624 & n.5 (Tex. App.—Corpus Christi–Edinburg 2010, no pet.). Relevant conduct. As explained above, PJC 61.12 lists the types of legal fidu ciary obligations that attorneys owe to their clients. The conduct that can violate these obligations is varied. While there is no one set of facts that always raises a claim for breach of fiduciary duty against an attorney in his role as an attorney, a survey of the case law shows that there are several recurring fact scenarios that tend to lead to such claims. Examples of such scenarios may include the following: A. Inappropriately using or disclosing confidential information. See Brown v. Green , 302 S.W.3d 1, 8–9 (Tex. App.—Houston [14th Dist.] 2009, no pet.); City of Garland v. Booth , 895 S.W.2d 766, 772–73 (Tex. App.—Dallas 1995, writ denied). Compare Judwin Properties, Inc. v. Griggs & Harrison , 911 S.W.2d 498, 506–07 (Tex. App.—Houston [1st Dist.] 1995, no writ) (allegation of disclosure of client confidences, without unfair use or deception, is only one of negligence), with Perez v. Kirk & Carrigan , 822 S.W.2d 261, 265–66 (Tex. App.—Corpus Christi–Edinburg

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