Legal Malpractice - Am Law

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TEXAS LAWYER ROUNDTABLE SERIES

NOVEMBER 15, 2010 • VOL. 26 • NO. 19

JOSEPH C. SCOTT DARRELL L. KEITHCHARLES “CHUCK” HERRING, JR. JETT HANNA

Legal Malpractice

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The ABA is still studying those statis-tics to try and better understand why there would be a 60 percent increase of malpractice because of the bad econ-omy, but that’s an important statistic to keep in mind. The insurance carriers are aware of that, and they’re already increasing rates in anticipation of that trend. And the final important piece of information is, the smaller the firm, the more likely you are to be sued for malpractice. So those are the three big pieces of news on a national basis, and we’ll discuss those as this morning goes along and if you have any other ques-tions.

DARRELL L. KEITH, founder, Keith Law Firm, P.C., Fort Worth: I’m just a simple country malpractice lawyer. I’m honored to be here. My practice is legal malpractice, medical and other profes-sional types of malpractice. I have pret-ty much devoted my life to learning the behavior of malpracters and learn-ing about them, what makes them tick, what makes them think or not, what makes them act the way they do or not. And my practice is a mission to me, be-cause I believe that the folks in the great state of Texas deserve quality services from all professionals, including law-yers. And when I started practicing law 40 years ago, not only was it unpopular for lawyers to sue doctors, but it was even more unpopular to sue lawyers, because lawyers don’t like to get sued any more than doctors do. I view cases primarily in litigation malpractice. I handle a wide range of legal malprac-tice cases, but my special interest is in civil litigation malpractice. That may be because that’s where I spent my life and have a better understanding, ap-preciation of what the litigation lawyer ought to do in prosecuting or defend-ing a claim in the proper, right way for clients. Ya’ll may know this, but when clients come to lawyers like me, they’re unhappy with their lawyer or law firm. Most of the time, it’s a deep sense of a betrayal of a trust. And you need to un-derstand that, that there’s a deep hurt, deep pain, because folks, they put their cases, their claims, sometimes their financial livelihood and well being in the hands of a lawyer, their businesses,

and when their lawyers let them down, they feel a great sense of betrayal in that trust. And, oftentimes, they’re like the Shakespeare’s character. They don’t want just justice. They want a pound of flesh. And it’s difficult, as a mal-practice lawyer, to temper that. And you need to understand the difference between going and seeking justice in their case and not, you know, being so emotional and going over the top and trying to seek that pound of flesh. So I don’t know about my colleagues, but I’m very careful about representing folks. I turn down meritorious cases for plaintiffs. I just felt that they would have unreasonable expectations and unreasonable demands that they would place upon me and that they might not ever be satisfied in the case. I think, also, that a cardinal principle for un-derstanding legal malpractice cases, and this is borrowed from the great William Osler, one of the practitioners of modern medicine at John Hopkins that I think applies equally to lawyers, and that is the secret — and I’m para-phrasing Dr. Osler, a great physician: The secret to proper legal care is to know enough but also to care enough. And a lawyer can know enough about how to represent a client in a transac-tion, litigation or matter, but if that lawyer doesn’t care enough about the client to dot their Is and cross their Ts, then they can get in trouble real fast. And also, you know, just standing up and not knowing enough is oftentimes a real problem. And lastly, I just want y’all to know that my experience in try-ing these cases in front of juries in the great state of Texas is the jurors in the jury box, as a general rule, they have a lot of respect for the legal profession and for lawyers, and despite all the public polls to the contrary about the public’s attitude toward lawyers, most folks like their own lawyers and respect them. And when they get in the jury box and they see the process and they see the judge and they see the lawyers and the way they conduct themselves, assuming they do so appropriately, they have a whole new respect for the legal system. And lawyers, in my opinion, are not prejudiced. They’re just lawyers

November 15, 2010 3

MIKE ANDROVETT, moderator, at-torney and owner of Androvett Legal Media & Marketing, Dallas: I’ve asked the members of the panel today to intro-duce themselves to you and talk to you a little bit about the nature of their work and then also how it relates to this more general topic of legal malpractice. So, Joe, if you’ll indulge me and let me start with you, talk to us a little bit about who you are and what you do.

JOSEPH C. SCOTT, vice president and general manager, CompuLaw, Los Angeles, CA: I was asked to be on the roundtable today, because I spend much of my time talking with risk management partners and their insur-ance carriers about risk management and malpractice claims. I was asked to be here to bring the national perspec-tive and highlight some big-picture issues. Mike mentioned some of the news you can use. The main issues that I have been speaking about during the past several years are the major trends with malpractice claims and calendar-ing errors. Although it is probably one of the more boring and tedious things that happens in a firm, it’s the leading cause of malpractice claims. That’s ac-cording to the last several ABA stud-ies on malpractice claims. The other interesting pieces of news is that dur-ing the last economic downturn — this is a nice way of describing what we’re going through — malpractice claims went up 60 percent on a national basis.

The proposed rule amendments to the Texas Disciplinary Rules of Professional Con-

duct are out and have gotten a lot of attention. All of these changes, from the controversial rule regarding sex with clients, to the rule addressing ex parte contracts with state agency decision-makers, to arbitration and settling professional misconduct claims, can be daunting. To help sort them out, as well as address many other legal malpractice issues, are a panel of experts brought together by the business department of Texas Lawyer. The following discussion has been edited for length and style.


4 November 15, 2010

gal malpractice, legal ethics, almost exclusively. I handle legal malpractice cases and disciplinary matters, on both sides of the docket. But much of my time is spent simply advising lawyers and advising law firms, helping them avoid problems or solve problems. For 20 years I’ve written a book on legal malpractice law in Texas, Texas Legal Malpractice & Lawyer Discipline [9th ed., ALM Media Properties, Inc. 2010] I serve on the Texas Supreme Court’s Grievance and Oversight Commit-tee, and I have served on the Supreme Court’s Advisory Committee. So I spend a lot of time working with rules. Sometimes I actually dream about rules — that’s when I know I need a break. As you know, we’re in the throes of the rule amendment process right now, so I’m sure we’ll spend a little time talk-ing about that today. Let me respond to a couple of points the other speakers made. Yes, you’re more likely in a small law firm to have a legal malpractice claim. But, keep in mind, if you’re go-ing to sue small-firm lawyers, find out if the firm has legal malpractice insur-ance. According to a State Bar survey, over 60 percent of solo practitioners do not carry insurance. So ask yourself: Do you want to chase someone who’s not insured? Second, I agree with what Jett Hanna says. If you do great work,

claims will go down. But there’s anoth-er important part to avoiding claims. That’s client relations. There is a won-derful book Blink: The Power of Think-ing Without Thinking, by Malcolm Gladwell. It recounts experiments by psychologists. In one, a psychologist recorded hundreds of conversations between doctors and patients. Half of the doctors had been sued for malprac-tice. The other half had not. What they found in studying the conversations was that the doctors who had not been sued talked to their patients longer than the doctors who had been sued — about 18 minutes versus 15 minutes. The doctors who hadn’t been sued also related to their patients by asking follow-up questions, using humor, and they used “orienting” statements at the outset, telling the patients exactly what would happen in the exam from be-ginning to end. Those were the differ-ences. Substantively, the doctors said the same thing. But the doctors who took the time to interact with patients — treat them like human beings they cared about — didn’t get sued. Then they took the experiment further. They took two ten-second clips from those conversations for each doctor — and they removed the words, con-tent-filtered them, so that the listener could just hear the intonation, pitch,

as defendants.

JETT HANNA, Senior Vice Presi-dent, Texas Lawyers’ Insurance Ex-change, Austin: Just a little bit about TLIE: We were formed in 1979 out of a project started by the State Bar of Texas. We are not affiliated with the state bar, but we’re a little different than your average insurance carrier. We are owned by our insureds, and if you are a TLIE insured you get to vote for the board of directors. This means we are in tune with what is going on with lawyers, and we want to share with the legal community what we have learned over the years about avoiding legal mal-practice claims. My overall philosophy about legal malpractice is that doing quality legal work and avoiding legal malpractice is really the same thing. If you are keeping your clients satisfied, if you let them see how you are doing things and keep them informed, you are 95 percent of the way there. A lit-tle bit about me: I am a lawyer. I have been at TLIE since 1987. I’m a senior vice president there, and I have done a little bit of everything in TLIE at one time or another. I foolishly thought in 1986 that, as the real estate market was tanking, that the safe place to go would be a legal malpractice insurance company. I wasn’t smart enough to realize yet that all the legal malprac-tice claims from the savings and loan process were going to hit. We suffered some hard times, yet we also learned a lot. It was a fascinating way to see the legal profession as a young lawyer. I started out in the claims end. Since that time, I’ve been an underwriter, assessing applicant firms and whether they have problems. I have now moved into loss prevention. I talk to lawyers a lot. If you’re TLIE insured, you can call up and we’ll be happy to talk over any issue with you. I spend quite a bit of my time on that. I appreciate the opportunity to speak with you here today and certainly afterwards, if you have any questions, I’d be glad to talk to you further.

CHUCK HERRING, Partner, Her-ring & Irwin, L.L.P., Austin: My practice is the law of lawyering — le-


Jett Hanna is a Senior Vice Presi-

dent at Texas Lawyers’ Insurance

Exchange. His duties have included

supervision of lawyers’ and judges’

professional liability claims, under-

writing, loss prevention and com-

puter operations. Hanna received

his B.B.A. Summa Cum Laude in

Management Science and Comput-

ers from Southern Methodist Uni-

versity in 1980, and his J.D. from

the University of Texas School of

Law in 1983. Hanna is a member

of the State Bar of Texas and is a

Registered Professional Liability

Underwriter (RPLU). He lectures

and writes on legal malpractice and

insurance topics. Hanna also is an

Adjunct Professor at The Univer-

sity of Texas School of Law.

rhythm. Then they had listeners grade the conversations on criteria such as warmth, anxiousness, dominance, hos-tility. The listeners still were able to tell the two groups of doctors apart. That’s a very important lesson for us lawyers. Treat clients like people. Show you care. Develop a relationship. If you do that, you’re much, much less likely to have problems, to get sued or to have a grievance filed. A former President of the State Bar tells a story that illustrates the same point. He once handled a le-gal malpractice case. He won a big ver-dict, but he ultimately lost at the Texas Supreme Court. The Court held that his basic legal position was correct, but that he had not phrased the proposed jury question in the case quite right. When he received the Supreme Court’s opinion, he immediately called his cli-ent, told her what happened, and ad-vised her to see another lawyer about possibly filing a claim against him. She said, “No, I won’t do that. You’ve been so nice and worked so hard, I’m not interested in a claim against you. Just forget it.” Maintaining a good relation-ship is incredibly important.

ANDROVETT: In June Texas Lawyer newspaper reported on a 15-year trend in the number of grievances that were filed against lawyers in Texas, and in 15 years the number of lawyers in the state had increased from 60,500 to 84,183. Yet, the number of grievances dropped from 9,582 in 1994, ’95, with 673 actual disciplinary actions, to 7,180 grievances, so roughly 2,400 less; and 335 disciplin-ary actions, roughly half in 2008 and 2009. What do you make of that?

HERRING: On the Texas Supreme Court’s Grievance Oversight Commit-tee, we’re studying some of those issues right now. That’s a very stark statistic: a 50 percent decrease in the number of lawyers disciplined during a period when the number of lawyers increased by 40 percent. What explains that? That is a very interesting question. In conjunction with the 2004 change in the disciplinary procedure rules, en-forcement funds were reduced, offices were closed. Obviously, that could be a factor. But over the years CLE has

increased. The Bar now also uses a Client-Attorney Assistance Program (CAAP) to try to divert some poten-tial grievance matters into mediated resolution. Incidentally, I highly rec-ommend the CAAP program if you encounter a client who says he or she is thinking about filing a grievance against you. Someone even said “Well, now we have more women in the pro-fession, and they’re just more ethical and moral.” Not all observers would agree with that.

ANDROVETT: Another theory is that more aggrieved clients are just skipping the grievance process completely, and they’re getting themselves a lawyer, just suing the lawyer right off the bat.

HERRING: It is true that quite a few of the post-grievance questionnaire re-sults from complainants whose griev-ance get dismissed are pretty negative in evaluating the disciplinary system. But I don’t think they’re necessarily just filing suit.

HANNA: I just thought I’d say from our insurance company perspective, we have seen somewhat of a decline in claims over a similar time period. My frame of reference is more from 1989, 1990 to present. 1989 to 1990 was kind of the height of the S&L and banking problems in Texas, and at that point we were seeing seven claims per hundred lawyers. In the last several years we’ve been pretty consistent between two and three claims per hundred lawyers annually, and we’re actually at the low end of that right now. So there may very well have been some changes in the quality in a positive way. Whether that directly relates to what’s going on in the grievance system, I can’t tell you. For many people, it’s not worth it to go through the grievance process if they’re going to file a malpractice claim. That generally means the higher dollar prob-lems do not end up going through the grievance system. For example, there are not a whole lot of conflict of in-terest matters going through the griev-ance system.

KEITH: My view is obviously not em-pirical, Chuck. But from my view, as a

November 15, 2010 5


basis, and I know that what they do is take information from insurance car-riers. It is not always the same insur-ance carriers in the mix, and I know some significant insurance carriers who do not participate. So I think a 60 percent increase, I would be sur-prised if it said exactly that, though, certainly, I think one thing we have seen, in our experience, is an increase in claims when there is an economic downturn. Unquestionably, there was one around the 2001 time frame, and it takes a long time for those to clear. The claims coming out of Enron were not concluded until 2006, 2007. So I fully agree that economic downturns often produce an increase.

ANDROVETT: To clarify, what you’re saying is that claims arising out of the current economic downturn haven’t re-vealed themselves statistically yet. Is that correct?

HANNA: That’s correct.

ANDROVETT: Because I remember two years ago Chuck and Darrell talk-ing about these very issues. Both of you anticipated that there would be more claims, real estate, because of the sub-prime meltdown and others related to advice that lawyers gave in the financial services industry.

practicing plaintiff ’s legal malpractice lawyer, our firm has seen a dramatic increase in the number and frequency of legal malpractice claims come to us over this period of time, in stark con-trast to these statistics. And, as far as, grievances are concerned, I think in complex cases the grievance system is relatively ineffective. I agree with Mike’s comment that many of the cli-ents that I talk to and folks that at least come to us with a legal malpractice complaint are generally more interest-ed in using the legal system, the court system, than the grievance process. And I also believe, at least from my experience, that the lawyers who make mistakes in handling particular litiga-tion cases, I mean, they come up with stories their own mother wouldn’t be-lieve, but they sell that chili to the cli-ents. And so a lot of folks, particularly in complex cases, the lawyers don’t shoot straight with them, as my lawyer friend Broadus Spivey did in the Willis v. Maverick case. And, instead, they’re misled and it’s confusing, they don’t understand it, and they don’t always follow up and contact lawyers about valid legal malpractice cases.

HERRING: Would you advise them to not file a grievance if they come to you with a potential malpractice case, in most instances?

KEITH: Well, it’s on a case-by-case basis, but I talk to them about it and make the appropriate recommendation under the circumstances. If I think that the grievance process could be ef-fective and contribute to helping them work through it and may get a reason-able result, yes. Otherwise, sometimes I’ll discourage it, and sometimes I’ll just leave it up to the clients whether to pursue it.

HERRING: I would almost always dis-courage filing a grievance if the client wants to file a legal malpractice claim. In the grievance system, the claim is out of the control of the grievant’s lawyer, for the most part. The investi-gative staff and lawyers don’t necessar-ily approach the complaints with the same perspective or spend the amount

of time and attention as the plaintiffs’ legal malpractice lawyer.

HANNA: Something I see sometimes from individuals, not so much from people who are represented by legal counsel, is an attempt to leverage the discipline against malpractice-a de-mand letter that says, “I won’t file a grievance if you pay the malpractice claim.” I always have to smile at that, because that’s, to me, our first piece of evidence showing that the client is try-ing to blackmail our insured into do-ing something.

SCOTT: Gentlemen, I would be cu-rious as too any insights or thoughts you may have in regards to the ABA statistic about claims going up 60 per-cent during the last economic down-turn. Do you have any insight on why that might be and what you anticipate coming up in the near future?

HANNA: One of the things that’s very interesting there is that real es-tate claims went up significantly as a proportion of all the claims. There had been about a four- to five-point spread between real estate and plaintiffs’ per-sonal injury claims in the 2003 study, and it narrowed to about one and a half percent in the 2007 study. I think those ABA statistics are not on a gross

6 November 15, 2010


different distribution of proceeds than appears on the closing statement. That can be a way that somebody covers up an inflated appraisal, or at least alleg-edly does so, and we’ve seen a couple of claims out of the current economic crisis where that has happened. Also I think real estate, when you start talking about commercial transac-tions, there’s a lot of room for conflict of interest issues. I don’t want to go through each area of law right now, but family law has seen a significant increase in frequency, and the dollar amounts are higher. In some of the higher dollar divorces there are now more claims. In estate probate trust areas, serious claims occur frequently. Ordinary business transactions are way up on the list. What the ABA classifies as business transactions and corporate law accounts for about 9.0 percent of the total claims. Just because you don’t see particular practice areas in the stats, don’t take that to mean that you are safe. Securities practice has a low frequency, but when something goes wrong, it goes very wrong, and the claims are often expensive. Patent law right now has some intense, heated malpractice cases going on. There have been some huge losses in that area.

HERRING: Conflicts of interest can make some of the best legal malprac-tice cases. They provide a built-in mo-rality tale: “This lawyer sold out one client for another client and for anoth-er fee.” Clients and the public expect loyalty. Experts testify about the bibli-cal origins of conflict of interest prohi-bitions — Matthew 6:24, “No one can serve two masters. Either he will hate the one and love the other, or he will be devoted to the one and despise the other. You cannot serve both God and Mammon.” Cases cite that. Juries re-late powerfully to that gut-level disloy-alty. Another common problem these days is expenses. Plaintiffs’ legal mal-practice lawyers review expenses with a microscope. We’ve seen lawyers who have charged clients for season tickets to football games or for alcohol during a trial that the lawyer lost. Of course that sort of thing looks terrible.

HERRING: This is purely anecdotal, but I have seen more claims against lawyers involved in the debt collec-tion process. Claims based on alleged violation of the fair debt collection practices statutes. There’s often a lag time between the economic decline and the claims. When the Texas sav-ings and loans collapsed in 1987 or so, the feds filed quite a few suits. For a time, it seemed that everyone I knew in big firms was either prosecuting those claims or defending them, suing or getting sued, over the S&L collapse. Those claims continued in the system well into the 1990s.

ANDROVETT: Joe, you touched on this topic about calendaring. That’s the num-ber one source of claims and problems in malpractices. Can we create a short list, maybe two lists, one, the kinds of things that get lawyers in trouble, and then, also, are there certain practice areas and areas of law that are more prone to get a lawyer in trouble than others?

HANNA: The ABA statistics on this are very informative and correspond pretty much to what our own internal statistics show as well. If you’re look-ing at the subject areas, plaintiffs’ per-sonal injury, that’s always been at the top of the list. I think there are a lot of reasons for this. It’s not that personal injury lawyers are worse lawyers or anything like that. I think that people who have personal injury claims have some of the most dire economic needs, and when they hear about people who have been successful in solving those and then they aren’t successful, that of-ten leads to an inquiry about what my lawyer did wrong. And there certainly are a lot of tricks and traps in there that can be real gotchas in that area. Real estate has been the No. 2 area na-tionally, not quite as high in Texas. A lot of that has to do with the structure of real estate transactions in different parts of the country and, of course, how bad the particular economic situ-ation is in the real estate market. But a lot of the things that can go on there, one of the things that we have seen some increase in is claims that lawyers who close transactions may permit a

Charles “Chuck” Herring, Jr. is a

partner in Herring & Irwin, L.L.P. in

Austin. His practice focuses on the

“law of lawyering,” representing cli-

ents on both sides of the legal mal-

practice and grievance dockets. He

is board certifi ed in Civil Trial Law,

served two terms on the Texas Su-

preme Court’s Advisory Committee

and was appointed by the court to

chair the Statewide Task Force on

Sanctions. Herring received a Presi-

dential Citation from the State Bar

of Texas for his service as Chair of

the Committee on the Prevention

of Legal Malpractice and Griev-

ances, and received the First An-

nual Professionalism Award from

the Texas Center for Legal Ethics

and Professionalism and the Tra-

vis County Bar Association. He is

the author of Texas Legal Malpractice

and Lawyer Discipline and co-author

of the Handbook on Texas Discovery

Practice. He has taught, lectured and

written many articles on legal mal-

practice and legal ethics. Herring is

an honors graduate of the Univer-

sity of Texas School of Law.

November 15, 2010 7


folks know. I know both sides of it, but I’m for it. To answer the question that everybody else was asked to address, primarily my special interest area is lit-igation malpractice. I see a lot of what I call the violation of the Clint East-wood Dirty Harry rule. If you’ll recall, Dirty Harry said, “A man’s got to know his limitations.” Similarly, some of the lawyers — and I see so many cases, particularly in the personal injury area where personal injury lawyers, who can try car wreck cases, grocery store and exploding coke bottle cases think they can take on a complex case that they don’t really have a lot of experience or knowledge in. And they won’t go get help. They won’t go to the books and get the answer, or they won’t seek out experienced, seasoned counsel who has expertise in a particular area. And that is very pronounced in medical mal-practice. Statute of limitations are very complex. You can’t just read the statute and know what about the limitations. So many personal injury lawyers amaz-ingly think that the discovery rule still applies in medical malpractice cases, and if they’re covered by the old law or the new law — the new law too — it’s not unless you have an open courts ex-ception, very complicated. They often don’t know about the expert reporting

ANDROVETT: Okay. That’s an ex-treme case. I’m talking everyday kinds of things that lawyers can struggle with.

SCOTT: Again, my expertise is in the calendaring area, and I typically get in-volved in conversations with the risk management partner and their insur-ance carrier because they’re looking for protection from malpractice claims and often discounts on the insurance side of things. It is the leading cause of malpractice, and the law firms feel that if they’re doing something to prevent it, shouldn’t that be reflected in their malpractice rates? I think one of the initial thoughts about the ABA statis-tic on the 60 percent claims increase, although I think it’s a small percentage, but there’s a cautionary tale there, that because of bad economic times, some attorneys are attempting to handle liti-gation in legal areas whey they don’t have the expertise that they normally would or in jurisdictions they don’t normally practice, so there’s some unique rule or situation they weren’t aware of that leads to an error. So that was one of the issues. Another issue they are still studying is the personnel layoff issue. Those layoffs can affect the calendar side of things because it is often that staff that you delegated those tasks to, and although you can delegate the task, you can’t delegate the responsibility. So, oftentimes, lay-ing off some of those staff creates some problems. We actually had a very large firm that had laid off 200 attorneys shortly after they had purchased our calendaring software. That was curi-ous to us, because normally, in those kinds of situations, they’re looking to cut costs. Apparently it was their in-surance carrier who was so concerned about 200 lawyers being laid off and all the calendar entries that their staff, who might not be around for long, had to move, to other people’s calendars. They were concerned that they were not the most highly motivated people, because they know their job is next. So the insurance carrier, to prevent some of those concerns, specifically required that they act to safeguard themselves against those possible errors. Another

point that I wanted to mention is that since good and bad trends oftentimes start in California, I thought I would mention that in California now, the rule is that if you’re not covered by malpractice insurance, you have to disclose that to your client. There are some exceptions, but they’re minor. That’s could be a big trend that the in-surance carriers like. Typically clients, if you tell them up front that you don’t have insurance, they may consider us-ing an attorney who does just, in case there’s a malpractice issue down the line and they want the deep pockets.

ANDROVETT: Darrell, that sort of re-minds me of the old rule about that you’re not certified by the Texas Board of Legal Specialization. A lot of laypeople would see that disclaimer and think, well, that lawyer doesn’t have a license to practice. What do you think of this notion of forc-ing lawyers who don’t have malpractice insurance to have to disclose it?

KEITH: Well, at the Keith Law Firm we think of little else, but, obviously, I’m for all of y’all out there having in-surance and telling your client that you do. I know that it’s controversial, from the recent state bar proposals, whatev-er. I truly think it is part of the lawyer’s obligation to the public and to their clients to carry insurance and to let

8 November 15, 2010


Darrell L. Keith, a plaintiff’s trial attorney for almost 40 years, is the founder of the Keith Law Firm, P.C. in Fort Worth, Texas. His focus areas of practice include le-gal, medical and professional mal-practice, personal injury and civil law litigation in state and federal courts. Keith received his B.A. from Baylor University and his J.D. from Baylor Law School. He is included in The Best Lawyers in America list (1991-2010), the Texas Super Lawyers list (2003-2010) and Texas Lawyer named him the “Best Plaintiff’s Lawyer in Fort Worth.” The Dallas Bar Asso-ciation recognized him as among the legal profession’s “Texas Trial Legends” in 2010. He is a former president of the Tarrant County Trial Lawyers Association. A pro-lifi c writer and frequent speaker, he has authored numerous articles on legal and medical malpractice and civil trial law topics. He is an adjunct faculty lecturer in trial advocacy courses at Baylor Law School. Through The Keith Foun-dation, he has endowed a law and medicine professorship and schol-arship and fi nancially contributed to other programs at Baylor Law School and Baylor University. For more information see www.keithlaw.com.

requirements, 120-day rule, getting your expert reports in and calendaring, the conflict of interest, breach of fidu-ciary duty in litigation is where lawyers get grieved, and the lack of informed consent, not telling their clients about the benefits and the risks of important things in the case, including the litiga-tion, weighing the risks and benefits of a settlement or getting great settlement offers but pushing the envelope, and then that settlement offer disappears, the case goes to trial and the plaintiff loses. You know, I’m just seeing a whole lot of that, in addition to just basic cal-endaring, people not just keeping up with their deadlines and things falling through the cracks. So that’s a quick overview of my view on that point.

HANNA: I’d like to comment on the disclosure issue. First of all, TLIE has very meticulously avoided taking any kind of stand, one way or another, on that. We figure it is up to the bar to figure out what the best way is to regu-late. It’s the same with the new rules. So we don’t have a position one way or the other.

HERRING: You mean you don’t have a position you’ll disclose publicly?

HANNA: No. Seriously, we have mem-bers who have strong feeling on both sides of these issues. So, as an organi-zation, we have decided not to take a position either way.

HERRING: But as a publicly respon-sible insurance company, I mean, sure-ly you think the lawyers ought to be forthright and out front if they don’t have insurance.

HANNA: There are some problems with disclosure. You could say that some disclosure is better than none, but there are some situations where it could cause problems. For example —

HERRING: But Jett, what about the fact that 25 of the 29 states that consid-ered the rule adopted it, and the Texas Supreme Court’s Grievance Oversight Committee resoundingly endorsed it?

HANNA: Let me just say what the problems are. One is that most legal malpractice insurance is written on a

claims-made basis. So, if the lawyer tells the client today that they’ve got insurance, that doesn’t mean they’re going to have it at the time that they get sued. That has the potential to mislead clients. Another problem, sometimes policies are very limited. I’ll give you one example. We issue a policy that covers nothing but what the lawyer does on behalf of a referral. And so that lawyer could tell clients, I guess, I have legal malpractice insur-ance, but are you going to be required to say it doesn’t cover what I’m doing for you? There are also subject matter exclusions in insurance policies as well. Like I say, TLIE really is not taking a position — I’m just saying this is a complicated issue, and there certainly is something to be said favorably about the ABA’s position and the number of states that have adopted it.

HERRING: I think on the State Bar Board, the vote was 49 to 1, against the proposed rule. So I don’t think we’re going to see it come up again soon there. And I agree that the strongest ar-gument against it is the inevitable lack of detail: What claims will be covered? How long will the coverage apply? But of course you can say the same thing about car insurance. The issue may resurface in the Legislature. The State Bar’s poll showed over 70 percent pub-lic approval for a rule.

KEITH: Well, I don’t agree with all that hypothetical argument that y’all are making. The state bar has imposed advertising rules on us that are very detailed, that govern us and all of our areas of conflict are complicated, and it seems to me that a fairly comprehen-sive list of information can be prepared and handed out to clients that at least put them on notice to make further inquiry and learn about claims-made policy have a duty to handle it, let their clients know if they’re maintaining in-surance and get coverage or at least disclose that their claim may not be covered, and they can consult with an-other attorney if it occurs. I just think it’s professionally hypocritical for law-yers, particularly those of us in the civil justice system, criminal justice system,

November 15, 2010 9


from your early years of practice comes back to bite you for which you will not have coverage. We have this conversa-tion quite a bit with lawyers. Everybody here has said don’t sue if there isn’t in-surance, and I think you would have a hard time finding a plaintiff ’s lawyer to take a case without insurance. But that isn’t always true, and sometimes defense costs are significant even when lawyers are eventually released because they don’t have insurance.

HERRING: In practical terms, lack of insurance can be an effective defense. I’ve had uninsured lawyer/clients as defendants on occasion. Unless an uninsured defendant is obviously in-dependently wealthy, a plaintiffs’ legal malpractice lawyer is very unlikely to want to chase them. Do you have a question in the audience?

AUDIENCE MEMBER: It seems like it could be a very sticky wicket. I get ap-pointed a lot of criminal areas, type cli-ents and do I have to go down there and tap on the window and tell them, every time I go to speak with them, that I do not have malpractice insurance if I am representing them? I’m going to be the first one to jump off the criminal wheel if the proposed rule is imposed, because everybody behind bars is going to want to sue me because I didn’t do their job well

enough for them.

HERRING: Under current law, legal malpractice claims don’t usually have much of a chance in criminal cases. In Peeler v. Hughes, [909 S.W.2d 494 (Tex. 1994)], the Texas Supreme Court held that a plaintiff who has been con-victed in a criminal case faces a sole-proximate-cause bar to asserting a legal malpractice claim against criminal de-fense counsel. As a practical matter, the criminal defendant has to win the ap-peal or habeas corpus relief and be ex-onerated. That’s rare. I had such a case once and took a large judgment against a criminal defense lawyer, so occasion-ally it happens.

KEITH: And no one is making you do it now.

ANDROVETT: I want to make sure that we have time to get into the proposed amendments to the disciplinary rule. Just to tie up this issue, I’m hearing both mis-conduct and misconduct that rises to the level of malpractice in substantive areas but also what I would maybe crudely call the management of the practice. Technol-ogy has come a long way in the last 5 to 10, 15 years. Yet, I personally know lawyers who are still working on what are really legacy software systems, such as Word Perfect and the like. Are there

for that matter as well, to champion the cause of justice and accountability and responsibility for the wrongdoing of our citizenry, yet we want to duck and run and avoid being responsible and accountable for the damages that we may cause. We make mistakes and those mistakes may hurt a client. I just think being a lawyer is a high calling. If we have a responsibility, if we hurt a client through malpractice, then we ought to have either malpractice insur-ance or the financial assets to right that wrong. I think it’s as basic as that.

ANDROVETT: This may be addressed to Jett or not, but can you make an argu-ment with a straight face that a lawyer would say, “You know what? If I get that insurance, I’ve made myself a little bit of a target for lawsuits, and, frankly, if I don’t have the insurance, I’m doing a good job. I know I’m ethical. It’s just a good business decision that may discour-age somebody from going after it?”

HANNA: I think that depends upon the situation of the individual lawyer and law firm. Certainly, the larger a firm is the less likely lack of insurance is to discourage suits. If your firm has a number of people with significant assets involved, and certainly more successful you’ve been, the less that argument plays. I think that there are a number of things to keep in mind. You know, the reason you have insur-ance is so you can sleep at night, and what helps you sleep at night may be economic, and it may be personal. I think that a lot of lawyers carry insur-ance exactly for the reason that Darrell is talking about, that they believe that it is the right thing to do and that they should protect their clients in case of an innocent mistake. Any lawyer could make an innocent mistake, could get the wrong numbers on something. If you were looking at it solely from an economic perspective, it is, perhaps, possible for a starting lawyer to say, “Insurance is just something I can’t af-ford at this time.” On the other hand, once you get insurance, you will not be able to purchase the years of prior acts coverage for when you first started. If you do well in practice, something

10 November 15, 2010


26 years. For PCs, it was 16 years. For Facebook it was less than 3 years. There are some 500 million Facebook users now. I was in a big case in Dal-las recently and half the lawyers in the courtroom were using iPads. I guess we all will soon or something like that. So changing technology will be an ongo-ing challenge for lawyers.

HANNA: I want to second the idea that missed deadlines are a huge fac-tor in legal malpractice, and maybe even extend that a little bit. It’s not just missed deadlines, but I would say scheduling in general — and a few of you may relate to this, but you have to also schedule enough time to do work, and a lot of what the newer software can do is let you set up time limits for dealing with the work that you’re do-ing. And the ABA stats talk more about specific administrative errors, but sometimes the qualitative problems that come up are, “ I had to draft that motion with only a couple of hours, and I really needed five days.” And so that’s a different way in which technol-ogy could help you a lot. I want to do a couple of shout-outs to some other ad-ministrative things that are absolutely critical. First is documenting who your client is and who they are not. It’s im-portant to have some sort of engage-ment document every time you work with a client, and it’s simply because, otherwise, it’s going to be your word against the clients as to what you were supposed to do. A lot of times lawyers lose those kind of straight-up argu-ments against their clients. I have seen some of the best lawyers in the state, who knew their subject matter forward and backward, were very good with clients. They got on the witness stand and the cross-examination started, and they try to think ahead of the plain-tiff ’s lawyer and start to look evasive. That’s happened to some of the nicest lawyers I know. The point is that the better you document the relationship with the client and your advice, the less likely a client will make or suc-ceed in a malpractice claim. In a lot of cases documenting who is not the cli-ent is critical. If you have people hang-

just basic standards that we can write down on a piece of paper to keep us out of trouble on the practice management side? And to talk a little bit about what you’re seeing in technology — and Joe, obviously, this is in your wheelhouse — that helps a lawyer with the stuff that gets overlooked.

SCOTT: There is some great software and websites out there that can help them. Remember, Computers do not make human errors, and most of the calendaring and mistakes are human errors. So embrace the technology. Let it help you avoid those human errors. There are several companies that do a great job of this that have been in business several years, so they know typically where the mistakes are made, and they build in safety nets to help prevent them. Early on I was told when I got married that the best way to ensure you’ll never forget your wed-ding anniversary is to forget it once. I think that’s the same with calendaring mistake. But why wait until you make a mistake when the typical mistakes can be avoided by a good calendaring system. One of the biggest malpractice claims we’ve seen in the calendaring area involves fraud. The biggest one I know of was a 35 million dollar mal-practice verdict, very large national law firm that was handling all the cal-endaring themselves and didn’t think they needed the technology to help, and they made a little mistake that cost them big damages. it was trying to cover up that mistake that resulted in the huge punitive damages, which their insurance carrier wasn’t going to cover because of the fraud side. I am sure there’s isn’t any software that helps you on the fraud side, but if you don’t make the mistake to begin with then there is no temptation to cover it up.

HERRING: At the ABA Ethics 20/20 Commission meeting last April, the head of US Public Policy for Google talked about the accelerating rate of technological change. He said that after cars were invented, it took 55 years before 25 percent of the popula-tion used them. For TVs, it was only

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November 15, 2010 11


ing around that are not clients, but they’re part of the situation, you may need to give them a letter that says spe-cifically that they are not involved. If you’re dealing with an entity and the entity is your client, a corporation or a partnership, it’s impossible to talk to a corporation. I don’t mean that in a negative sense, but you have to talk to an individual, and that individual may think that they are the client. And in some situations that can lead to some very severe conflicts of interest. There is so much we could go into on what law firms need to do on the websites, unsolicited e-mail, a number of things of that nature. And certainly having a good client intake system where you are looking for the types of clients that you want to have. Making sure that you have clients who pay your fees is critical. I want to tell you I am not saying don’t take pro bono cases. Chuck would shoot me if I did, and so would the state bar. But I am saying you should make sure that you don’t take an unintentional pro bono case. Really watch those fees. Get out of any situation where you’re not being paid, because people are going to look for reasons why they don’t have to pay you. One of the most obvious is legal malpractice.

HERRING: Let me underscore the points that Darrell and Jett made about the importance of identifying who is and who is not the client, and about having a clear scope of engage-ment, describing what you are going to do. So often in legal malpractice cases, I see arguments about who was and who was not a client. If a lawyer leads someone to believe that the lawyer is protecting that person’s interest, the lawyer usually has a duty to warn the person that the lawyer is not represent-ing the person. We see that a lot with spouses, and often in probate settings in which the parents and children may sit through estate planning sessions. Be careful and be clear.

ANDROVETT: You mentioned the proposed amendments to the disciplinary rules. There is a lot of red ink where there are additions. In fact, there’s a whole new

definition section. Gentlemen, what’s go-ing on here? What do lawyers need to know about these proposals? The bar will likely hold a referendum, Chuck, what, end of the year, early next year?

HERRING: The current expectation is that the referendum will be late this year or early next year. Every Texas law-yer needs to read these proposals. They run some 156 pages, some 63,000 words. You can read them in just a few short, or very long, hours. But they’re important. If adopted, these new rules will affect in important ways how we Texas lawyers conduct client intake, how we charge clients and document fees, how we conduct conflict searches, prepare conflict-consent forms, and on and on. Particularly look at the new rule containing definitions, Rule 1.00, and the conflicts rules, Rules 1.06 through 1.09.

KEITH: Look also to the excessive fee rule, because the focus is changing from its very technical language from the current emphasis on what a competent lawyer would consider to be reasonable and prudent — I’m paraphrasing — toward the ABA and the national rule, which is the focus on what reasonable and prudent attorneys consider to be a reasonable fee. There’s still an up-in-the-air issue on whether unreasonable expenses. I don’t think that’s covered in the new rule.

HERRING: The proposed Rule 1.04 doesn’t contain an express limit on the expenses a lawyer may charge a client. Public interest groups have criticized that omission.

KEITH: But I think keep an eye on that, and also be mindful we addressed that in the attorney fee contracts and letter fee agreements that you try to address reasonable and necessary ex-penses as well as the fees. Very briefly I want to address practice management. On the intake, I’d just like to echo what Chuck said. Process the claims, claim or defense or matter. You may have to customize, but have a standard nonengagement letter or decline let-ter if you’re not going to represent the client. Whether it’s a claim, litigation

or any legal matter, get in writing that you’re not accepting representation in the case. If it’s litigation, at least give them some information if there’s a po-tentially meritorious claim, statute of limitation and notice of claim require-ments, at a minimum, give them the generic information. If you can be even specific, I’d recommend that you do that. With regard to computers, at least with regard to small firms, commuters are great. We all use them, but, as we know, computers can crash and infor-mation can disappear into cyberspace. So, with regard to the critical and im-portant deadlines and that sort of thing, calendaring, I don’t know about you big firm lawyers, but in our small firm, we do have a backup manual sys-tem so that, if your computers crash, you don’t lose everything. I’m finding conflict of interest and supervision of attorneys in large or small firms. Like emergency medicine patients, surgical patients and critically ill patients in the medical profession, a reasonably pru-dent doctor is constantly assessing the condition of the patient and reformu-lating the care and treatment. Lawyers have a similar situation, particularly in litigation where the facts and the law may be changing on a periodic basis, and you should have policies and pro-cedures, if not in writing, practices in your firm to impress the need on the trial lawyers in the firm to constantly assess, based on new facts, new law, new circumstances, to identify any conflicts of interest and, if they’re identified, act on them. And then, in supervising attorneys, have adequate supervision. Don’t just turn them loose or talk to them once a quarter or a couple of times a year. Due to confi-dentiality settlements, I’m prohibited from talking about some specific cases, but you’d be surprised at the number of outstanding law firms, on both sides of the docket, that get in trouble be-cause well-intentioned associates aren’t adequately supervised often enough by their supervising attorney who would know better and would spot the prob-lem before it became a mistake that turned into legal malpractice.



SCOTT: If I could add a note on the supervision issues. Again, for those of you who aren’t familiar with the cur-rent software out there, a good calen-daring system can help with the peer review process as well. You can put in-formation on several people’s calendars to remind them, and it won’t go away until somebody says affirmatively says yes, we’ve taken care of that particular step. And as I am sure you know, on the practice management side, almost everything that happens at a law firm, somebody has put something on a cal-endar somewhere, so a good software system can capture that and remind the people that need to be reminded, adding deadlines that need to be re-membered We all know we’re supposed to back up our computers But I don’t always remember to do it myself, but we have an automated system that au-tomatically does that for all your dead-lines and dates. So those are some of the things that technology can really help out with that are the normal hu-man error issues and processing issues.

ANDROVETT: Just a quick follow-up. Is there a cultural element to this? No lawyer or firm starts out on an unethi-cal path or a path that leads to a legal malpractice claim. When you come into a firm, do you see some firms are just more attuned to what might be considered best practices, and others you wind up doing more things for like injecting this calen-dar program it becomes a little bit of a cultural change in the firm?

SCOTT: Absolutely. Having a risk ad-verse culture in a firm is critical. Typi-cally we get contacted after there’s been a mistake and their insurance carrier insists they do something new or dif-ferent to prevent these mistakes in the future. Or they know that they made a mistake or they got close to making a mistake that did not result in a mal-practice claim but they get nervous and so they want to impose a new structure. In the calendaring area, we strongly recommend automated rules based and centralized calendar from a practice management standpoint. Those are the keys we think can prevent most of these issues. Because calendaring and know-

ing the rules seems so simple. My wife likes to say us lawyers, although we’re often wrong, we’re never in doubt, and I can give you hundreds of malprac-tice examples where the attorney was absolutely positive he knew the rule, he knew the deadline, he knew how to count, and yet they were wrong. It is not an area where somebody is just guessing. They’re confident, but they had it wrong. The rule may have changed. That jurisdiction is a little different; they account for holidays differently usually just simple things. And, oftentimes, it is delegated to one of their staff who hasn’t been trained. So even if the attorneys know about the rules and what to do if that dead-line fell in on Caesar Chavez day but he hasn’t trained everyone on the staff. So, again, good software is designed to be a good safety net for all the terrible mistakes that people make and gives you reminders and warnings to prevent them. It can even ask “are you sure you want to do that.”

KEITH: Yeah. I’d like to add one other very important practice, the documen-tation, and that goes to documenta-tion of the file. There is an adage in medicine that, if it ain’t charted in the medical record, it didn’t happen, and that will carry over and does carry over in the law. I guarantee you that I’m al-ways able to find reputable outstanding lawyers who serve as expert witnesses who will testify that it’s a standard of reasonable prudent attorney care under given circumstances that the handling of the case claim or matter should be documented adequately. That doesn’t mean that the reasonably prudent lawyer has to write down everything. It means that, if it’s important, if it’s significant, it should be documented. You know, a memo, a note, better still, a letter to the client or to the appro-priate person, because, when you’re defending yourself in a legal malprac-tice case, your documentation, just like your medical malpractice cases, if you’re right, you’re in the right, and if you’ve done a good job and you’ve acted reasonably, the documentation will save your life, because juries will

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come-determinative, secret conversa-tions with agency decision-makers just before filing permit applications — such as for coal plants. However, some administrative law practitioners think that the ethics opinion is too restric-tive. So that rule has generated consid-erable debate.

ANDROVETT: Will these proposed rules have any impact once you get into a courtroom?

KEITH: Yes, I think they will, be-cause although the law in Texas is that although the rules themselves at least — I think this is still the law, Chuck. The rules themselves don’t create a pri-vate cause of action, and there’s been controversy, but it certainly can form the basis of an expert witness’s opin-ion as to whether or not the attorney has engaged in intentional or unin-tentional professional misconduct or malpractice. For example, since I’ve been designated the resident expert on sexual relation with clients, Chuck has already spelled out insightful com-ments, so rather than belabor those points, I would just say that, in a mal-practice setting, if the rule is enacted, then that will give an added basis for an attorney expert witness, as well as any mental health expert witnesses on a legal malpractice case against an attorney having sex with the client, because, as you all know, in the case involving ministers, preachers who get involved with their parishioners, usu-ally there’s testimony from a mental health expert about trust transference. In the world of psychology where the client, there’s a trust transference even more so because of the sexual relation-ship, and dental health care providers and legal experts, the plaintiff ’s expert will be able to bring to bear in the case will most likely be able to testify that the attorney lost his or her objectivity in engaging in an affair or longstand-ing relationship with the client. And so, you know, as a malpractice lawyer, my view is that, obviously, on an ethi-cal charge, it makes it very complex or even convoluted, but in the malprac-tice setting to protect yourself from malpractice for the lawyer to do so,


place great weight on the physical evidence of your contemporaneously documented information, including letters to clients. I can’t emphasize that enough. When I see a medical malprac-tice case with poor charting, my heart soars. And I feel the same with legal malpractice cases. When I see sloppy and poor charting, then, it’s an open field day. And if you haven’t charted it, you haven’t documented it and the cli-ent has a good memory, then the jury possibly might give greater weight to the client, and the client, sometimes they keep real good notes too and their notes will trump your memory.

HERRING: And of course we lawyers shouldn’t forget our obligation to train the nonlawyers who work for us. Rule 5.03 requires us to make “reasonable efforts” to ensure that our staff acts in ways that are compatible with our pro-fessional obligations. Most nonlawyers don’t know about how our confiden-tiality rule works, or our conflict of interest rules. So we have to instruct them. Another problem I see is client files. I’m surprised how often I en-counter a client whose lawyer refuses to release the file, apparently not under-standing that the client owns the file. That can create claims for conversion and breach of fiduciary duty. But apart from the rules, we have to be alert to the human side. I saw a case recently in which a law firm’s senior partner had developed a mental problem. His colleagues had known him as superbly competent. They weren’t watching for his problem to develop. They didn’t ex-pect it. It went on too long unnoticed and it created serious complications for the firm. We have more elderly lawyers practicing law now, and that trend is supposed to increase dramatically in the future. That may raise other issues our profession needs to be sensitive to. It’s been called the Senior Tsunami.

ANDROVETT: I want to cover quickly a couple of the particularly controver-sial proposed rule changes. These are the ones that have gotten more coverage in the legal practice. Section 1.13, has to do with sex with clients, and 3.05 on ex parte contracts with state agency decision

makers, 1.08(d) on arbitration and on settling professional misconduct claims. Can you talk a little bit about what those particular provisions would mean for lawyers in Texas?

HERRING: I’ve spoken on several panels concerning the proposed rule amendments. The sex-with-clients rule always seems to draw comments, some-times heated comments. Some lawyers think it’s none of the Bar’s business to regulate their personal conduct, that it’s an invasion of privacy, and that the rule will attract malicious grievances from opposing parties in divorce cases. Other lawyers think that not having a rule — when doctors and even massage therapists have a rule — makes our profession look very bad. Some think the particular rule that has been pro-posed is so full of loopholes that it’s worse than no rule, it’s a charade. Oth-ers think it’s a starting point. There are many issues and lots of comments. The rule as currently proposed by the Su-preme Court prohibits exchanging fees for sex — but, oddly, it doesn’t men-tion expenses. And Rule 1.04 doesn’t limit expenses. So that almost sounds as if a lawyer could charge huge ex-penses, then get lots of free sex in ex-change. That just sounds crazy. The Bar Board subcommittee has recommend-ed changing that. The Rule 1.08(g)(1) and (3) issue that’s been raised is this: May a lawyer and client privately settle a matter in a way that prevents discipline? Most states prohibit that as a matter of public policy. The idea is that discipline is to protect the pub-lic, not just the particular client. Some think the rule is unclear on that point. Here’s the ex parte issue: The current rule, Rule 3.05, as construed by the Texas Supreme Court’s Professional Ethics Committee, prohibits a lobby-ist/administrative-lawyer from hav-ing an ex parte communication with a state agency decision-maker before, for example, a permit application is filed. The proposed amendment would lift that restriction. For obvious reasons, public interest groups strongly oppose that change. They are concerned that lobbyists will have important, out-


it’s very simple. If the lawyer and the client become romantically or sexu-ally involved at that point, because of these problems and the danger of los-ing objectivity and so forth, the lawyer should just terminate the lawyer-client relationship and have that client get another lawyer, and if they are truly in love or want to maintain their personal relationship, it seems to me that’s the simplest. At least that’s my advice for now.

HANNA: I think that Darrell touches on a key larger point about the disci-plinary rules, and that is there’s often a tendency for lawyers to look at the disciplinary rules and think, “If I fol-low these and I follow these to the let-ter, I’m going to be fine,” and that’s not necessarily true in a legal malpractice situation. There are a number of rea-sons for that. One is that it’s not gen-erally understood that a jury is going to determine the standard of care when it’s all said and done. Standard of care is a jury issue, and they’re going to do that based on expert testimony. And it’s not somebody who has been approved by the bar by a vote as being the expert in the area. It is another lawyer who can have a perspective that maybe most of the bar doesn’t agree with. So, when you have that kind of situation where a jury is determining the standard of care, you’ve got to look at the rules in a much different way. Another area to be careful about relying on the disci-plinary rules to keep you out of mal-practice trouble is on whether certain things should be in writing or not or what should be in the writings. When you take those too literally and go that’s all I’ve got to do, I think you’re facing a lot of potential problems. You’ve got to think about writings as potential evidence that can prove did you really lay out for the client the things that might go wrong or that might be an issue down the road. Chuck talked ear-lier in the program about citing Bible verses and ancient city of London stat-utes, and I just want to relay one situ-ation that happened to me early in my career. We had one of the best expert witnesses in the country, Geoffrey Haz-

zard, a professor from Yale and one of the main contributors to the original ABA model rules. I went to the trial. I thought he did better than the local expert for the plaintiff ’s lawyer. After the jury came back against us for 2 mil-lion dollars, we asked the jury, “What did you think of our expert?” And they said, “Well, when we heard how much he had been paid, we didn’t pay any attention to what he had to say.” You don’t know what’s necessarily go-ing to grab the jury’s attention. I’m not saying that was a bad call, necessarily, on their part. Perhaps they were right and this other guy is the real expert. But there are so many things that can come up. In this same case, the plain-tiff ’s lawyer, who drove me nuts, kept saying a lawyer is supposed to be like your “best friend.” That was his way of explaining all the law of breach of fi-duciary duty and all the complications. Even if we could get a motion in limine against using that phrase, plaintiff ’s lawyers would have come up with the Bible verses or the London city code or something else. So it’s important to understand what happens at trial and how the jury will assess the standard of care.

HERRING: We frequently see the rules used in fiduciary duty cases. For instance, in a very thorough opinion in Sealed Party [v. Sealed Party, 2006 WL 1207732 (S.D. Tex. 2006)], Federal Judge Nancy Atlas discussed the rela-tionship between the disciplinary rules and fiduciary duty. She said that the rules “significantly inform” the analysis of the scope of an attorney’s fiduciary duties. That’s a good summary. Con-sequently, we often see the rules used in fiduciary duty cases. But we also see them fought over in professional negligence — traditional malpractice — cases. Often defendants try to keep them out of evidence, but often the rules come into evidence one way or the other.

ANDROVETT: Joe, if someone wants to know more about copy law, calendar-ing and software, how can they go about finding that information?

SCOTT: The CompuLaw website has


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all the information that you will need at wompulaw.com If I can also add, embrace all of the technology that you can. It can help you in all of the ar-eas that we have been discussing today. Bring in some experts and consultants, bring in some trainers. Most of our cli-ents probably use 20 percent of what is available to them. Embrace it. Use the rest of it. It will really help you. My email address is [email protected] you have any questions of me.

ANDROVETT: And, Jett, if the lawyers want to know more about the Texas Law-yer Insurance Exchange?

HANNA: Feel free to contact us through our website, www.tlie.org, or at 1-800-252-9332. My e-mail address is [email protected]. I’ll be happy to talk to anybody on the malpractice is-sues.

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Billboards • Ad Campaigns • Media Buying & Placement • Inte

rnet A

dve

rtising • Lo

go

s

PR Campaigns • Media Monitoring • Marketing Budget Ma

nag

em

ent • Litig

atio

n PR

Full Service Advertising • Public Relations • News Relea

ses • Stra

teg

ic Pla

nning • Lo

go

s

Media Training • Ad Creative Development • Anno

unce

ment C

ards •

Invitations • We

bsite

Cre

ative

• Ad

Ca

mp

aig

ns

Full Service Advertising

Ad Creative Development

News Releases • Full Service AdvertisingBrochures • Professional Photography • Print Adve

rtisin

gState Bar of Texas Ad Compliance • Airport D

iora

mas

• M

aili

ngs

Profe

ssiona

l Photo

gra

phy

Airp

ort D

ioram

asInte

rnet A

dvertising

Ad Campaigns • Media Buying & Placement

Litiga

tion PR

New

sletters

Brochures

PR Campaigns

Professional Photography • Print Advertising • G

rap

hic Design

Ad Creative Development • Logos •

Announcement Cards • Li

tigat

ion

PR

Media Buying & Placement •

Ad Campaigns

Litigation PR

Radio & TV Advertising • Invitations

PR Campaigns

DALLAS HOUSTON

Date post:	03-Feb-2022
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