St. Mary's Law Journal


“Extreme [attorney] misconduct may warrant an extreme remedy.” Fee forfeiture certainly constitutes an extreme remedy, at least compared to the ordinary remedy for violation of a legal duty. But neither the degree to which the remedy is extreme nor how extreme the misconduct must first be before the forfeiture becomes appropriate is apparent in light of the Texas Supreme Court’s decision in Burrow v. Arce. Understanding the confusion which has arisen with regard to Burrow’s impact depends in large measure on a thorough evaluation of (1) the basis for the court’s determinations relating to forfeiture, (2) the sources from which this reasoning was derived, and (3) the careful manner in which the court set forth the applicable standards. The issues which persist do not raise questions in all breach-of-fiduciary-duty claims against attorneys. Burrow primarily impacts cases where clients pursue fee forfeiture, as opposed to actual damages. Yet, the availability of forfeiture impacts breach-of-fiduciary-duty cases in which actual damages are sought. While forfeiture is a well-defined remedy for certain acts of disloyalty, its application to the attorney-client context is not seamless. Instead, the nature of a clear and serious breach of duty has become the subject of any number of theories. While Burrow’s forfeiture requires a clear breach of duty, the precise duties and appropriate sources pose areas of undivided ambiguity. Forfeiture requires the party seeking to benefit in equity to define the duty. This duty must be shown to be violated in some clear fashion. Measuring whether a particular violation of duty is severe by considering the Burrow factors has produced varying results. Perhaps the lack of clarity in this area is to be expected and may be unavoidable.


St. Mary's University School of Law