What Constitutes Legal Malpractice in Texas?

To prevail on a legal malpractice claim, a plaintiff must show that:

(1) the attorney owed the plaintiff a duty,

(2) the attorney breached that duty,

(3) the breach proximately caused the plaintiff’s injuries, and

(4) damages occurred.

Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113, 117 (Tex. 2004); Greathouse v. McConnell, 982 S.W.2d 165, 172 (Tex. App.—Houston [1st Dist.] 1998, pet. denied).

If a legal malpractice case arises from prior litigation, a plaintiff must prove that, but for the attorney’s breach of his duty, the plaintiff would have prevailed in the underlying case. Greathouse, 982 S.W.2d at 172. It is the Plaintiff's burden to show that there was a breach of this duty by counsel, which caused the injury. Cases often refer to this causation aspect of the plaintiff’s burden as the “suit-within-a-suit” requirement. See id. at 173.

Generally, one proves causation in a legal malpractice suit by expert testimony. See Alexander, 146 S.W.3d at 119–20. The determination of proximate cause is usually a question of fact. See El Chico Corp. v. Poole, 732 S.W.2d 306, 313–14 (Tex. 1987). This is true in legal malpractice actions as well.

Appellate case differ in the standard of review, in that cases of appellate legal malpractice, however, the determination of causation requires determining whether the appeal in the underlying action would have been successful. Id. The plaintiff must show that but for the attorney’s negligence the client would have prevailed on appeal. See Jackson v. Urban, Coolidge, Pennington & Scott, 516 S.W.2d 948, 949 (Tex. Civ. App.—Houston [1st Dist.] 1974, writ ref’d n.r.e.). The rationale for requiring this determination is that, if the appeal would not have succeeded and the trial court judgment would have been affirmed, the attorney’s negligence could not have caused the plaintiff any damage. Id. On the other hand, if the appeal would have succeeded in reversing the trial court’s judgment and obtaining a more favorable result, then the plaintiff sustained damage because of the attorney’s negligence. Millhouse v. Wiesenthal, 775 S.W.2d 626, 627 (Tex. 1989).

In cases involving appellate legal malpractice, the question of whether an appeal would have been successful depends on an analysis of the law and the procedural rules. As the Millhouse court noted, because this requires a review of the trial record and the briefs in order to determine whether the trial court committed reversible error, “a judge is clearly in a better position” to do this than is a jury. Id. at 628. Therefore, where the issue of causation hinges on the possible outcome of an appeal, the question of causation is to be resolved by the court as a question of law. Id.; Klein v. Reynolds, Cunningham, Peterson & Cordell, 923 S.W.2d 45, 47 (Tex. App.—Houston [1st Dist.] 1995, no writ).