Legal Questions

Q: What is legal malpractice?
Legal malpractice is the failure of a lawyer to render competent professional service to a client. If the client is damaged as a result of the failure, he or she may have a claim against the lawyer for legal malpractice. There are two major theories of liability:

  • Negligence
  • Breach of fiduciary duty The most common used in malpractice cases is negligence.

Q: What is negligence?
An attorney owes a duty to the client to perform all work relevant to a case within the standard of care expected of the "average" attorney in the same or a similar situation. If the attorney fails to perform at the level of an average attorney, there may be negligence and liability for legal malpractice. If an attorney presents himself out to be an expert in an area of law, the standard of care is that of the "ordinary" expert in the field.

Q: What is "breach of fiduciary duty"?
An attorney is to act in the best interests of his client. An attorney is required to communicate and interact with the client in an honest and candid manner devoid of any deception, no matter how slight. When an attorney puts his own interests or those of a third party before that of the client, a lawyer may be breaching his "fiduciary duty" to the client.

Q: What must be proven in a legal malpractice case?
To win a legal malpractice case, you must prove four points:

  • Your attorney owed you a duty to act properly
  • Your attorney breached that duty by acting negligently, not following through with the agreement or possibly making mistakes which an average attorney would not have made
  • Your attorney's behavior caused you damage. This includes proving that the results of your case would have been different (for example, you would have won the case) had the attorney acted properly
  • You suffered a financial loss as a result of the behavior.

Q: Is my attorney able to settle my case without my consent?
Possibly, but usually not. Review the retainer agreement you signed with your attorney. It's possible that the retainer agreement allows your attorney to settle a case without your consent and to sign the settlement and release agreement on your behalf.

If your attorney settled the case without your permission, and you have not yet executed the settlement and release agreement, and you're unhappy with the settlement, you should tell your attorney that you do not wish to proceed with the settlement. If a check has previously been forwarded to your attorney, it is a simple matter to return the funds.

Q: How do I know if the lawyer I hire has malpractice insurance?
The only sure way to know is to ask for a copy of the policy and/or the declarations page of that policy (commonly known as the “dec sheet”) which will tell you the effective dates of the policy and the policy limits, as well as other useful information. Asking for proof of coverage is not prohibited by any rule or law and is, in fact, a prudent thing to do. Lawyers in Texas are not required to carry insurance, so there is no central clearinghouse of information that you can check or with whom you can check to independently verify coverage. Membership in certain referral organizations sometimes require a subscribing attorney to carry a minimum level of insurance.

Q: How can I challenge my attorneys expense reports?
Your attorney is presumably deducting the expenses from the settlement or the money that you are receiving, so ask for documentation. Your attorney should be able to provide you with copies of invoices, bills and other receipts to demonstrate that these payments were made on your behalf. If you don't receive the documentation, don't permit them to be deducted from your settlement.

Q: Can I ask my lawyer for a copy of the settlement check?
You have an absolute right as the client to see a copy of the settlement check, as well as to review a copy of the settlement breakdown sheet before the check is deposited. Typically, the insurance company check has both your and your attorney's name on it and, therefore, you would typically have to endorse the check before it could be placed in your attorney's client trust account. Ask your attorney to provide you with a copy of the actual settlement check forwarded to him by the insurance company, as well as a copy of all checks written totaling the full amount of the settlement.

Q: How do I find out if my lawyer has been disciplined?
Contact the Texas State Bar Association (website: and ask what information they maintain on the attorney in question. In some states, they will not tell you if there are any "grievances", but they will let you know whether there has been any public record of discipline or other action taken by the Bar. You might also try asking the attorney directly.

Q: Whose file is it, anyway?
Despite positions taken by lawyers on occasion, the file developed and maintained by a lawyer for services rendered to a client belongs to and is the property of the client. This includes any research, notes, or other work product of the lawyer. That means if the attorney client relationship ends and the client wants the file, the lawyer has to give the client the original file. If the lawyer wants to keep a copy, he may do so at his own expense.

Brett Wagner was selected as a “Top Notch Lawyer” in legal malpractice as reported by The Texas Lawyer Go-To Guide, October 8, 2007

Texas Lawyer Go-To Guide, October 8, 2007

Super Lawyer

Brett Wagner was named as a Super Lawyer in 2008 and 2009 as published by Law & Politics

Eleven Reasons Lawyers Get Sued HERE to learn why