Frequenty Asked Questions
How long does a client have to file a legal malpractice lawsuit?
Are lawyers required to have professional liability insurance?
May I obtain my file from my lawyer?
What are the consequences if I fire my lawyer?
Can my lawyer settle my case without my consent?
Am I entitled to a refund of the retainer I paid to my lawyer?
What other options do I have besides suing my lawyer?
What is legal malpractice?
- Legal malpractice, which is the same as negligence, simply means that a lawyer has failed to use ordinary care. In other words, the lawyer has failed to do that which a lawyer of ordinary prudence would have done under the same or similar circumstances, or has done that which a lawyer of ordinary prudence would not have done under the same or similar circumstances.
- In addition to proving the lawyer was negligent, the client must also prove that the lawyer’s negligence was the proximate cause of harm to the client. For example, if the client’s case was dismissed because of the lawyer's negligence, the client must prove that the client would have, in all likelihood, prevailed in the underlying lawsuit. The client is not required to prove this with absolute certainty, but the client must be able to prove that, more likely than not, the client would have prevailed in the lawsuit. Often, this can be the most challenging part of a case. top
How long does a client have to file a legal malpractice lawsuit?
- In Texas, the statute of limitations for a legal malpractice case is 2 years. The statute of limitations does not begin to run until the client discovers or should have discovered through the exercise of reasonable care and diligence the facts establishing his or her cause of action. Willis v. Maverick, 760 S.W.2d 642, 644 (Tex. 1988). When the legal malpractice occurs during the course of the prosecution or defense of a lawsuit, the statute of limitations on the malpractice claim is tolled and does not begin to run until all appeals on the underlying claim are exhausted or the lawsuit is otherwise concluded. Apex Towing Co. v. Tolin, 41 S.W.3d 118 (Tex. 2001). However, the aforementioned tolling rule does not apply to legal malpractice claims based upon transactional work. The Vacek Group, Inc. v. Clark, 95 S.W.3d 439 (Tex. App. - Houston [1st District] 2002, no pet.). Moreover, the aforementioned tolling rule does not apply to other types of claims, such as those governed by the Texas Deceptive Trade Practices - Consumer Protection Act. Underkofler v. Vanasek, 53 S.W.3d 343 (Tex. 2001). If you fail to file a lawsuit before the statute of limitations expires, you may be barred from asserting any claims against the lawyer. The whole area concerning limitations is complex. Accordingly, it is imperative that you obtain the services of a lawyer who can further advise you regarding these issues in a timely fashion. top
Are lawyers required to have professional liability insurance?
- Unfortunately, in Texas, the answer to this question is “No”. The State of Texas does not require lawyers to carry professional liability insurance. Although several other states require lawyers to carry professional liability insurance, Texas has not yet joined these ranks. Consequently, many lawyers choose not to carry professional liability insurance. Regardless of whether the lawyer has insurance, a client can still sue his lawyer; however, when the lawyer doesn’t have professional liability insurance, this can make the case more difficult to pursue. top
May I obtain my file from my lawyer?
- Yes. Although many lawyers refuse to turn over the file to the client, the file is clearly considered to be the property of the client - - not the lawyer. The client’s file includes all correspondence, memos, pleadings, notes, and all other documents or materials which may have been included in the file. Resolution Trust Corp. v. H- - - -, P.C. (128 F.R.D. 647 N.D. Tx. 1989); and Hebisen v. State, 615 S.W. 2d 866 (Tex.Civ.App.-Houston 1981, no writ). This includes notes made by the lawyer and any legal memoranda or other documents created by the lawyer. Further, the client is entitled to the original file - - not merely a copy of the file. If the lawyer wishes to keep any portion of the file, the lawyer may copy the file at the lawyer’s own expense. Resolution Trust Corp. 128 F.R.D. at 649. There is an exception to this rule if the lawyer is claiming a lien against the file for amounts due from the client for professional services and expenses. However, even under these circumstances, a lawyer may only retain the file if the retention of the file will not prejudice the client in the subject matter of the representation. Rule 1.15 (d) Texas Rules of Professional Conduct. top
Can I fire my lawyer?
- Yes. The client has the absolute right to discharge a lawyer “for any reason or no reason at all”. Hoover Slovacek L.L.P. v. Walton 206 S.W.3d 557, 562 (Tex. 2006). A lawyer cannot prevent the client from firing the lawyer, even if the lawyer includes language in the contract which restricts the client’s right to fire the lawyer. The inclusion of language in the contract which imposes an undue burden on the client’s ability to change counsel violates public policy and is unconscionable as a matter of law. Hoover Slovacek L.L.P. v. Walton 206 S.W.3d 563 (Tex. 2006). However, when the lawyer is discharged by the client, the lawyer may have certain remedies against the client depending on whether the lawyer is discharged with or without good cause. top
What are the consequences if I fire my lawyer?
- This depends on whether the client has good cause to fire the lawyer. For example, if the lawyer materially breaches the contract, then the client has good cause to fire the lawyer, and the lawyer may forfeit all right to any compensation. Royden v. Ardoin, 331 S.W.2d 206, 209 (Tex. 1960). However, there is also authority holding that a lawyer discharged for cause might be able to recover in quantum meruit for those services performed prior to the time of discharge. Rocha v. Ahmad, 676 S.W.2d 149, 156 (Tex. App. - San Antonio 1984, writ dism’d).
- When the client discharges a lawyer without good cause, the lawyer may recover on the contract for the amount of his compensation. Mandell & Wright v. Thomas, 441 S.W.2d 841, 847 (Tex. 1969). In the case of a contingency contract, the lawyer is entitled to recover either the amount of his contingent fee or he may recover in quantum meruit. Mandell, 441 S.W.2d at 847; Hoover Slovacek L.L.P. v. Walton, 206 S.W.3d at 56. Thus, if a client fires a lawyer without good cause, and then hires another lawyer, the client may be responsible for paying both lawyers. top
Can my lawyer settle my case without my consent?
- Generally speaking, the answer to this question is “No”. A lawyer should consult with the client concerning any settlement offer, and generally it is for the client to decide whether or not to accept. See Rule. 1.02 of the Texas Disciplinary Rules of Professional Conduct. This rule is subject to a few limited exceptions, such as in class-actions, certain insurance defense cases and when the client has validly relinquished to a third-party any rights regarding a settlement. Other than these limited exceptions, a lawyer is required to consult with a client and shall abide by the client’s decision concerning settlement. A lawyer may not circumvent this rule by inserting language into the contract between the lawyer and client which purports to give the lawyer authority to settle the case. Any such contractual language, which attempts to give the lawyer settlement authority, is unenforceable. Sanes v. Clark 25 S.W.3d 800, 805 (Tex. App. Waco, 2000, pet. denied). top
Am I entitled to a refund of the retainer I paid to my lawyer?
- A lot of confusion exists regarding retainers. In fact, many lawyers don’t even understand the difference between a true retainer and a pre-payment for services. “[A] true retainer ‘is not a payment for services. It is an advance fee to secure a lawyer’s services, and remunerate him for loss of the opportunity to accept other employment.’” Cluck v. Commission for Lawyer Discipline, 214 S.W.3d 736, 740 (Tex. App. - Austin, 2007, no pet.). A true retainer is earned when it is received, so it may be non-refundable. Id. at 740. On the other hand, a prepayment for services is not earned until the services have been performed and thus, it is refundable. Id.A lawyer can’t turn what is really a prepayment for services into a retainer merely by labeling it a retainer in the contract with the client. Courts will scrutinize the language of the contract carefully, considering such factors as whether the lawyer’s fees will be billed against the advance payment. Id.If the advance payment is found to be a prepayment for services, and not a true retainer, a lawyer cannot make the prepayment non-refundable merely by designating in the contract that it is a non-refundable retainer. top
What other options do I have besides suing my lawyer?
- If a dispute exists regarding the lawyers’ fees, you may contact the Dallas Bar Association Fee Dispute Committee at (214) 220-7400 or www.dallasbar.org. The Dallas Bar Association established this committee to assist lawyers and clients resolve fee disputes. This is a voluntary program, which must be agreed to between both the client and the lawyer. Otherwise, the parties must resolve their dispute in court. If both the client and the lawyer agree to submit their dispute to the Dallas Bar Association Fee Dispute Committee, the dispute will be resolved by binding arbitration. Both parties give up the right to have their dispute resolved in court, but the cost associated with this approach is considerably less. Although this is a voluntary program, all lawyers should conscientiously consider submitting any fee disputes to this committee. See, Comment 19 to Rule 1.04 of the Texas Disciplinary Rules of Professional Conduct. For more information, contact the Dallas Bar Association, (or the State Bar of Texas for other fee dispute committees located throughout Texas).
- Depending upon the nature of the complaint, the client may also file a grievance against the lawyer. The State Bar of Texas investigates and prosecutes complaints of professional misconduct against lawyers licensed in Texas. Generally, the grievance system is only designed to hold lawyers accountable for violations of the Texas Disciplinary Rules of Professional Conduct. It is important to note that legal malpractice and lawyer misconduct are not necessarily the same. A lawyer can commit legal malpractice and not be in violation of the disciplinary rules, or the lawyer can be in violation of the disciplinary rules without having committed legal malpractice. The grievance system is not designed to pursue legal malpractice claims against lawyers. For more information concerning a grievance, contact the State Bar of Texas at (800) 932-1900 or (800) 204-2222, or www.texasbar.com.
- If the lawyer has stolen money from the client or otherwise refused to turn over funds belonging to the client, the client may have a right to be reimbursed through the State Bar of Texas Client Security Fund. This fund reimburses eligible applicants up to $30,000, but it does not cover legal malpractice claims. If the lawyer has been disbarred, is deceased, or has resigned in lieu of discipline, the process is relatively simple. Otherwise, the client must file a grievance against the lawyer and obtain a disciplinary sanction against the lawyer, before the client becomes eligible for reimbursement from the fund. For more information concerning the Client Security Fund, call the State Bar of Texas at (877) 953-5535. top