law-fiduciary-duty-of-attorney in attorney-client relationship or arising from prior representation
breach of fiduciary duty tort |
FIDUCIARY DUTY
A fiduciary duty applies to any person who occupies a position of peculiar confidence towards another. Johnson v.
Brewer & Pritchard, 73 S.W.3d 193, 199 (Tex. 2002). The appointment of an attorney in fact creates an agency
relationship. Sassen v. Tanglegrove Townhouse Condominium Assoc., 877 S.W.2d 489, 492 (Tex. App.-
Texarkana 1994, writ denied). An agency creates a fiduciary relationship as a matter of law. Id. A fiduciary owes
her principal a high duty of good faith, fair dealing, honest performance, and strict accountability. Id.
Existence of [fiduciary] Duty
As mentioned, at least to some extent, appellees acknowledge the existence of a fiduciary duty because they have
represented Brown in the past. See Meyer v. Cathey, 167 S.W.3d 327, 330 (Tex. 2005) (explaining that an
attorney-client relationship gives rise to a fiduciary duty as a matter of law). Indeed, Brown's affidavit and other
summary judgment evidence establishes that Green and Sheehy, Lovelace & Mayfield provided legal
representation or advice to Brown on several occasions. Consequently, we turn to the question of whether Brown
has presented competent evidence raising a genuine issue of material fact as to whether appellees breached their
fiduciary duty to Brown.
Brown asserts the following categories of arguments regarding breach of a fiduciary duty in his briefing and his
response to the motion for summary judgment: (1) revelation or misuse of confidential information, (2) breaches
of a fiduciary's duties of loyalty and candor, and (3) various types of inappropriate conduct.
Brown v. Green (Tex.App.- Houston [14th Dist.] Sep. 1, 2009)(Hedges)
(legal malpractice, breach of fiduciary duty) (SJ for defendant affirmed)
Brown acknowledges that when a client alleges breach of a fiduciary duty based on inappropriate use or
disclosure of confidential information, the client must establish actual misuse or disclosure and not merely a
genuine threat of misuse or disclosure. See City of Garland v. Booth, 895 S.W.2d 766, 772-73 (Tex. App.-Dallas
1995, writ denied); Capital City Church of Christ v. Novak, No. 03-04-00750-CV, 2007 WL 1501095, at *3-4 (Tex.
App.-Austin May 23, 2007, no pet.) (mem. op.). In his discussion of the law relating to the breach element,
however, Brown further states that “[i]n order to show a breach . . . there must be evidence of a 'substantial
relationship' between the prior representation and the current case," citing Capital City Church. This statement is
a misreading of Capital City Church and the cases relied upon therein.
NO DUTY OWED TO THIRD-PARTIES / NONCLIENTS
An attorney only owes a duty of care to his clients and not to third parties, even if they may have been damaged
by the attorney's representation of the client. Barcelo v. Elliott, 923 S.W.2d 575, 577-78 (Tex. 1996); Stancu v.
Stalcup, 127 S.W.3d 429, 432 (Tex. App.-Dallas 2004, no pet.); see also Swank v. Cunningham, 258 S.W.3d 647,
661-62 (Tex. App.-Eastland 2008, pet. denied) (holding that former corporate officers and shareholders could not
maintain legal malpractice action in their individual capacities against law firm that represented corporation).
Brown v. Green (Tex.App.- Houston [14th Dist.] Sep. 1, 2009)(Hedges)
(legal malpractice, breach of fiduciary duty) (SJ for defendant affirmed)
AFFIRMED: Opinion by Chief Justice Hedges
Before Chief Justice Hedges, Justices Brock Yates and Frost
14-08-00592-CV Willard E. Brown III v. George Maynard Green and Sheehy, Lovelace & Mayfield, P.C. Appeal
from 74th District Court of McLennan County (name of judge not shown on docket)
Accordingly, the trial court did not err in holding that Brown produced no evidence to establish the duty element of
a professional malpractice cause of action.
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