legal misconduct

theory of liability for legal misconduct

Legal misconduct is a broad term that includes a variety of civil liability claims against attorneys for breaches of their duties to clients and, occasionally, to the detriment of others. Certain actions by a lawyer may violate professional standards of care, disciplinary rules, civil statutes, and even criminal statutes. Such actions may result in monetary loss, forfeiture of fees, disqualification and license revocation.


Lawyers implicitly represent to clients that they possess the necessary degree of skill, education and ability to practice law and will exercise reasonable and ordinary care and diligence in applying their skills and knowledge in representing clients. Negligence claims are by far the most common claims against attorneys. The traditional elements of any negligence claim are:

1. The defendant has a duty of care to the plaintiff;

2. The defendant breached the duty of care;

3. Violation of duties directly caused damage to the plaintiff; and


Lawyers usually have a duty of care only to their clients and not to third parties. The Texas Model Jury Charge defines professional negligence as “a failure to use ordinary care, that is, a failure to do what an ordinary prudent attorney would have done in the same or similar circumstances, or to do what an ordinary prudent attorney would have done in the same or similar circumstances have been done in the circumstances.” Proving the standard of care and breach of the standard of care usually requires expert testimony from counsel.

breach of fiduciary duty

A lawyer is a fiduciary and therefore owes a duty of utmost loyalty to a client and a duty to make a full and fair disclosure of all facts material to the client’s representative. Accordingly, attorneys have an obligation to deal honestly and fairly with their clients, and all dealings between attorneys and clients must involve the attorney’s complete integrity and loyalty. A lawyer must place the client’s interests above those of the lawyer or others, including other clients. Failure to meet the obligation of full disclosure amounts to concealment. Clients have reason to rely on the integrity and loyalty of their attorneys.

A lawyer’s fiduciary duty includes, inter alia, avoiding impermissible conflicts of interest, protecting client confidentiality and property, fully disclosing all material information, obeying client instructions, and refraining from activities that would be detrimental to the client. An unfair presumption arises when a client alleges that a lawyer has breached a fiduciary duty, and the lawyer bears the burden of proof that the fiduciary duty has been fully and fairly, adequately and impartially observed.


Fraud includes a false statement of material fact, known to be false, or made recklessly without knowledge of its truth, with the intention that another party will act on the statement, and that the other party reasonably relies on the statement to suffer harm. A lawyer may be liable for damages for defrauding his client; a lawyer may also be liable for defrauding a third party. Fraud can also arise when a lawyer is obliged to disclose certain information and fails to do so, thereby harming the client.


A lawyer who participates in a civil conspiracy may be liable to his client and third parties. A civil conspiracy consists of two or more persons who have a specific intent to achieve an end or course of action, either an unlawful end or a lawful end, by unlawful means, in which one or more unlawful, overt The conduct promotes the object of the direct harm. Thus, a lawyer may be guilty of conspiracy by knowingly agreeing to defraud a third party. Each conspirator is legally responsible for all acts performed by any conspirator in furtherance of the complicity.

deceptive trade practices

The Texas Deceptive Trade Practices-Consumer Protection Act (DTPA) applies only to attorneys whose claims for damages are not based on rendering legal services whose essence is to provide advice, judgment, or an opinion. However, the DTPA does apply to misrepresentations or unconscionable conduct that cannot be described as advice, judgment, or opinion. The advantage of pursuing the DTPA cause of action is the slightly lower standard of proving damages causation and the potential for multiplied damages and attorneys’ fees.

Legal Misconduct Remedies


A plaintiff in a negligent or breach of fiduciary duty legal misconduct must prove that the attorney’s breach of duty directly caused the plaintiff’s injury in order to result in damages. Not all attorneys’ negligent actions or breaches of fiduciary duty actually cause harm. Proximate cause requires predictability and factual cause. Foreseeability means that lawyers should foresee the risks that negligence will bring to clients. In fact, cause requires that the negligent act or omission was a significant factor in causing the harm, otherwise the harm would not have occurred. Proof of causation in legal misconduct cases often requires expert testimony from attorneys linking the breach of duty to the resulting injury.

The Texas jury model charge defines proximate cause as “a cause which produces an event in the natural and continuous order without which the event would not have occurred. In order to be proximate cause, the act or omission of the complaint must be such that, Even a lawyer of ordinary care would have foreseen that the event, or some similar event, might reasonably have arisen therefrom. There may be more than one proximate cause of the event.”

penalty for damages

The most common remedy that clients seek from their former attorney is to recover damages due to the attorney’s negligence or other breach of duty. The traditional method of determining damages when an attorney negligently represents a client is to prove a “suit within a suit.” The plaintiff must show that, without the attorney’s negligence, the plaintiff could have recovered the judgment in the original case, the amount of that judgment, and that any such judgment is recoverable. In cases where the attorney handles the defendant’s case, the client must prove that the client could have prevailed had it not been for the attorney’s negligence. However, the “case within a case” standard of proof may not be required in fiduciary breach and DTPA cases.

In other legal misconduct cases that do not involve underlying litigation, traditional damages rules provide that a client may recover all foreseeable damages resulting from the attorney’s misconduct or omission. Also, exemplary damages may be awarded for attorney fraud or other malicious wrongdoing.

no fee

An attorney who manifests a material breach of duty to a client may be required to forfeit some or all of the attorney’s compensation in connection with the matter, even if the client has not suffered actual harm as a result of such breach. Typically, fee forfeiture cases are premised on allegations of a serious breach of fiduciary duty or fraud by the attorney. In a fee forfeiture case, the jury will consider whether the attorney violated the alleged violation, and the trial judge will determine whether such violation was obvious and serious, and if so, the amount of fees to be forfeited.

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