TX: Underlying action for award of attorney fees
Facts: The client hired the attorney to represent her in a divorce. The attorney withdrew and filed a petition for her attorney’s fees in the client’s divorce case. The client contested the attorney’s right to recover fees and also made a claim for attorney fees for her newly retained attorney in the divorce case. A year later, the client sued the attorney for legal malpractice in the handling of her divorce case. The attorney argued that the client’s malpractice claim was barred from suit for failure to raise it as a counter-claim in the underlying attorney fees action. The trial court ruled in favor of attorney and client the appealed.
Issue: Whether the client’s malpractice claims are barred and judgment proper?
Ruling: Yes. In the underlying divorce action, the attorney withdrew from representation of the client before judgment was entered. The attorney-client relationship ended with the withdrawal and no legal injury could occur after that because the attorney had no duty to the client. An attorney’s conduct must raise a risk of harm to a client’s legally protected interest. A cause of action generally accrues when the injuring act is committed and damage is suffered. When the attorney intervened and sued the client for attorney fees in the same pending divorce action, the client suffered a legally recognized injury. The attorney intended to collect money from the client for her alleged unlawful malpractice. The client denied owing the attorney anything and argued she should be awarded attorney fees for the services of her replacement lawyer. A claim of attorney malpractice has been held a compulsory counterclaim to a claim for attorneys’ fees under Rule 97(a). CLS Assoc. Ltd. v. A B , 762 S.W.2d 221 (Tex. App. 1998). In this case, the issue of malpractice arose from the same transaction as the attorney’s fees. Because the client chose not to counterclaim for this action, all claims are barred
Lesson: A claim of damages for legal malpractice is a compulsory counterclaim in an action for attorney fees.
Posted in: Family Law