St. Mary's Law Journal


Although the number of malpractice suits may not be increasing, the way plaintiffs are pleading these suits is changing dramatically and resulting in increased potential for attorney liability. Recent changes in the nature of liability led to increased potential for damages and a trend of high dollar settlements in malpractice cases. These changes may significantly impact the ability of lawyers in Texas to avoid liability while representing clients and preserving client confidences. Texas law generally limits malpractice claims to clients against their attorneys; but non-clients are increasingly succeeding in creatively pleading causes of action by alleging fraud, conspiracy, and negligent misrepresentation. Plaintiffs are pleading claims of fee forfeiture more frequently, which represents a significant development in malpractice liability. In Burrow v. Arce, the Texas Supreme Court first held that an attorney who committed a clear and serious violation of a fiduciary duty to a client may be required to forfeit all or part of their fee. Additionally, the court reviewed the background of fee forfeiture—as well as previous cases—concluding that some Texas courts held fee forfeiture appropriate regardless of whether the client suffered actual damages. Fee forfeiture claims, therefore, are becoming more prominent as alternatives to traditional malpractice claims, which require proof of both causation and damages. Furthermore, significant developments in attorney liability may extend beyond the attorney-client relationship with respect to claims of negligent misrepresentation, fraud, and conspiracy. As a result, suits by third parties based on these causes of action are proliferating and resulting in high-dollar settlements. Consequently, attorneys must perform their duties with the utmost caution, as their obligation to zealously represent their clients becomes tempered by a new range of duties that they now owe to the world beyond.


St. Mary's University School of Law