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St. Mary's Law Journal

Abstract

Every Texas lawyer with a legal malpractice defense docket should be aware of the Zuniga rule and its possible exceptions. Although the general rule in Texas is that causes of action are freely assignable, because of the ruling in Zuniga v. Groce, Locke & Hebdon, legal malpractice causes of action are unassignable. The Texas Supreme Court declined to hear the case with the notation “writ refused” essentially adopting the lower court’s opinion as its own. Nonetheless, the decision in Zuniga did not resolve the problem of the insolvent judgment debtor, nor did Zuniga purport to invalidate all agreements that dispose of malpractice claims. The Zuniga opinion also did not cause judgment creditors to abandon all hope of obtaining satisfaction from the hapless debtor’s attorneys.   Innovative attorneys have set out to test the limits of the Zuniga doctrine. Attorneys have drafted sophisticated agreements clearly designed to accomplish what Zuniga did not directly allow. These agreements avoid the pitfall of attempting to transfer nominal control from the former client to someone outside the attorney-client relationship. For instance, Mallios v. Baker demonstrates that the Zuniga rule is not a per se bar to the prosecution of legal malpractice claims by a client who attempts to assign away some of his rights in the claims or proceeds. As long as circumstances create substantial financial incentives to assign legal malpractice claims, parties and their attorneys will devote themselves to crafting innovative agreements that test the outer limits of the Zuniga rule. Therefore, the future development of the Zuniga rule is uncertain.

Publisher

St. Mary's University School of Law

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