Texas Lawyer Blog

Texas Supreme Court: Legal malpractice client can recover fees it paid

The Texas Supreme Court has ruled that a legal malpractice plaintiff can recover fees it paid to its allegedly negligent law firm in the underlying litigation. Whether that kind of recovery was possible was the big issue in Akin Gump Strauss Hauer & Feld v. National Development and Research Corp. and Robert E. Tang --- a case in which Akin Gump was sued by its former client over how the firm handled a contract-dispute case. The most important issue before the Supreme Court in the case was whether under Texas law a plaintiff can recover attorneys' fees incurred in prior litigation with a third party as an element of economic damages when the fees are the natural and proximate result of the legal malpractice defendant's alleged negligence. And here’s what the high court said: “We see little difference between damages measured by the amount the malpractice plaintiff would have, but did not, recover and collect in an underlying suit and damages measured by attorney’s fees it paid for representation in the underlying suit, if it was the defendant attorney’s negligence that proximately caused the fees,” Justice Phil Johnston wrote for the court. Justice Eva Guzman did not participate in the decision. “In both instances, the attorney’s negligence caused identifiable economic harm to the malpractice plaintiff. The better rule, and the rule we adopt, is that a malpractice plaintiff may recover damages for attorney’s fees paid in the underlying case to the extent the fees were proximately caused by the defendant attorney’s negligence.”

-- John Council

5th Circuit decides disqualification case involving departing-lawyer rule

Is there a rebuttable or irrebuttable presumption that an attorney had the confidences of all of a firm's clients when he left that firm? According to the 5th U.S. Circuit Court of Appeals, it's  rebuttable. Several legal ethics experts have said that a ruling to the contrary would have been a disaster for the legal profession in Texas and for any lawyer who has left one firm to go to work for another. Kirk A. Kennedy and Mark A. D'Andrea v. Mindprint Inc. involved a case in which former Jackson Walker senior counsel Kirk Kennedy was disqualified by a U.S. Bankruptcy Court judge from representing a client in a case in which Jackson Walker represented an adverse party. A U.S. District Court affirmed the bankruptcy judge. Kennedy, now general counsel for Gulf Coast Cancer Center, appealed the decision and argued before the 5th Circuit this month that he did no work on behalf of Jackson Walker’s client Mindprint while at the firm. In fact, he didn’t even know that Mindprint was Jackson Walker’s client while he worked at the firm. But Jackson Walker argued there was an irrebuttable presumption that Kennedy had client confidences. In its decision, the 5th Circuit agreed with Kennedy that there is a rebuttable presumption for lawyers in his position and reversed the U.S. District Court's ruling disqualifying Kennedy. “Under both the Texas Rules and the ABA Model Rules, Kennedy should have had the opportunity to demonstrate that he did not obtain confidential information regarding Mindprint during his time at Jackson Walker. Kennedy presented uncontradicted evidence that he was unaware of Mindprint’s existence . . . during his affiliation with Jackson Walker. In light of this evidence, Kennedy successfully showed that his imputed disqualification ended when he left Jackson Walker; therefore, his representation of [Kennedy's client] D’Andrea did not present a conflict of interest requiring his disqualification,” wrote 5th Circuit Judge Carolyn Dineen King who was joined by Judges Eugene Davis and Fortunato “Pete” Benavides.

-- John Council

Lasers, lights and lawyers at Roland Garcia's Halloween bash

Roland Garcia says almost all of the lawyers, judges and legal staffers who come to his annual Halloween party on Oct. 31 will be wearing costumes. (He's pictured at left at his 2007 party with his daughter Kristin, center, and wife Karen, right.) “When else can you act so silly and get away with it – grown adults acting like fools in front of each other,” says Garcia, a shareholder in Greenberg Traurig in Houston who says Halloween is his favorite holiday. Garcia says he expects as many as 300 members of the legal community, politicians, neighbors and family to attend the party at his Memorial-area house. “We’ve hired a professional lighting and sound crew. We’ve got a laser light show. We’ve got several mist and fog machines. We will have dead bodies and skeletons through the house. . . . We added a huge Grim Reaper hanging by the front door, which will scare the hell out of you,” says Garcia. “It’s a blast.” Partygoers who want to chat with Garcia this year should look for a Dracula. His wife, Karen, will be dressed as a “vamp vampire,” Garcia says. He warns attendees to be careful what they say, “because everybody’s dressed up and you don’t always know who you are speaking with.” Garcia says he didn’t hold the party last year, because his house was damaged by Hurricane Ike.

-- Brenda Sapino Jeffreys

Funeral set for John M. O’Quinn

The funeral for Houston lawyer John M. O’Quinn, who was killed in an automobile accident on Oct. 29 in Houston, is set for 11 a.m. on Wednesday, Nov. 4, at Second Baptist Church on Woodway in Houston. Calling hours are from 4 p.m. to 8 p.m. on Tuesday, Nov. 3, at the George H. Lewis & Sons Funeral Directors on Bering, according to an announcement on the Web site of The O’Quinn Law Firm. In a written statement on the site, the firm says it has suffered a “profound shock” from the “tragic deaths” of O’Quinn and employee Johnny Cutliff in the accident. “However, the firm remains committed to doing what Mr. O’Quinn taught us so well, putting our clients’ interests before our own. The firm remains strong. It is fully solvent and has the financial security which insures the firm’s ability to service its cases, both present and in the future,” the firm says in the statement. The firm also notes that O’Quinn established a succession plan to assure the continuity of the firm. Christian A. Steed, the firm’s managing partner, could not be reached for immediate comment about the succession plan, but the statement notes he continues in the management role he has held for 14 years. “Our heads are bowed in grief. But we know John O’Quinn would not want us to waiver in our commitment to our clients. We will not do so,” the firm wrote. O’Quinn and Cutliff were killed in a one-vehicle accident when the SUV O’Quinn was driving on Allen Parkway near downtown Houston careened across a wet roadway and struck a tree.
-- Brenda Sapino Jeffreys

Fashion Fridays: personal style

I’ve had many signature styles in my life: pale pink denim (to pair with a Debbie Gibson concert t-shirt) as a kid, black Dr. Martens (worn with absolutely everything, right or wrong) in high school and a baseball cap (to cover up inevitably grown-out roots) in law school. With each phase of my life -- and sometimes with each changing season -- I end up gravitating toward a single piece of jewelry or category of accessory. Until very recently, my signature style piece was the bangle. Lucite or metal, a single bright red one or a stack of three in neutral hues, I found bangles to be a simple and comfortable way to personalize every outfit. (As a result, I’ve amassed quite a collection of them, which I now use as samples or freebies for Wardrobe Peace clients.) Though choosing a bangle for an outfit was such a tiny moment of creativity, it broke up the monotony of an otherwise rather boring routine. And it was a way for me to put my personal stamp on the office uniform for which lawyers are famous.

But a signature look or style doesn’t have to be something you wear every day. The important idea behind a personal statement piece is that it reflects who you are today, in this moment. For example, if you’re drawn to big, graphic prints, experiment incorporating different prints once or twice a week, with a blouse or skirt.

Similarly, a signature style doesn’t have to be worn head to toe. Subtle additions like my bangles, or a long strand of pearls or chunky silver watch are very reasonable and work-appropriate expressions of your personality. Do you have a signature style? This week I asked a few friends to share what their personal statement pieces are.  Here’s what they had to say:

• Amanda’s signature piece: A headband. Drying her long, thick hair in the morning takes 30 minutes, followed by 15 minutes with the straight iron. Headbands allow Amanda to cut her prep time in half in the morning and sometimes skip the hairdryer altogether. Plus, these days headbands are available in an infinite array of widths, materials and designs. When I met her for coffee the other day, she was wearing the most beautiful patent-looking, glossy brown, wide headband. And her hair looked great.
• Clare’s signature piece: A pair of incredible shoes. As a trial attorney, Clare wears a suit almost every day. Other than a pinstripe or subtle plaid here or there, all of her suits are pretty much the same. That’s why Clare loves shoes. Within reason, she can get away with different materials and textures, colors and embellishments. My favorite shoes in her collection are a pair of dark grey, suede pumps with a cluster of purple and blue jewels at the toe. Perfection!
• Kelly’s signature piece: High waist, wide leg trousers. While they don’t work for every occasion, Kelly always manages to stay chic and professional in wide leg trousers at the office. Through much trial and error, she found the perfect trouser cut for her body type and owns a pair in every fabric and color. It helps that her signature piece is timeless -- she may have had a harder time with skinny jeans or culottes. Or pink denim.
• Bevin’s signature piece: A bright red wool trench. If you can believe it, Bevin bought this tailored J. Crew trench coat 10 years ago. She’s kept it in great shape with regular cleanings and some old fashioned TLC. Living in the Pacific Northwest, she practically wears the coat year round, and its color makes it such a welcome statement in a sea of neutrals. Bevin told me that more than once she’s been singled out as “little red riding hood” or the “girl with the red coat.” But she likes being noticed as a tad different. It’s very Bevin of her.

This winter, I think I’ll try long scarves. . . .

Kasia Benson is a corporate associate with Andrews Kurth in Dallas. She is also the founder of Wardrobe Peace, which provides sensible, “use what you’ve got” wardrobe consulting services to lawyers and other busy professionals.

Police say John O'Quinn was driving SUV, not wearing seat belt, in fatal crash

John M. O’Quinn of Houston's The O’Quinn Law Firm was driving the SUV involved in the one-car accident this morning that killed the prominent plaintiffs lawyer and a passenger, a Houston Police Department spokeswoman confirms. Spokeswoman Jodi K. Silva says neither O'Quinn nor the passenger was wearing a seat belt. The Harris County Medical Examiner's Office confirms that the passenger was Johnny Cutliff. Silva says the speed of the vehicle has not been determined, but witnesses to the accident told police the SUV was traveling between 50-60 miles per hour. Silva notes the weather was drizzly and the road was somewhat slick. The Chevrolet Suburban was traveling out of downtown Houston on Allen Parkway, crossed over a median and struck a tree. O'Quinn, 68, and Cutliff, 56, both were pronounced dead at the scene of the accident.

-- Brenda Sapino Jeffreys

John O'Quinn had been going to San Antonio mediation but didn't get on the plane

While standing in the security line this morning at Houston’s William P. Hobby Airport to catch an early flight, former state district Judge Levi Benton extended his hand and warmly greeted one of Texas' greatest trial lawyers, John M. O’Quinn (pictured). Benton could not have known it would be the last time he would see him. O'Quinn, 68, of Houston's The O'Quinn Law Firm, died in a car accident this morning. “I started to say, ‘John, why are you flying Southwest? Where’s your plane? Why are you going through the security like the rest of us guys?” says Benton, now a partner in the Houston office of Strasburger & Price who was on his way to Dallas for a partner meeting. Instead Benton says he and O'Quinn talked about their common friend, South Texas College of Law Associate Dean Gerald Treece, and made plans to have lunch soon. “He was going to a mediation in San Antonio. I don’t know who the mediation was for or whom it was with,’’ Benton says of O’Quinn, who was traveling alone. Later, Benton says he started receiving messages on his cell phone from his law partners saying that O’Quinn had died in an automobile accident in Houston. Benton couldn’t believe it; “I said the media is wrong.” He learned later that reports that O’Quinn and another man had been killed when their SUV hit a tree on the Allen Parkway in Houston were true. “He either changed his mind or missed his flight . . .” Benton says of O’Quinn. “I’m just stunned and saddened. I wish he’d gotten on that plane.”  News of O’Quinn’s death spread quickly through Texas’ legal community. “We lost a good friend and a hell of a lawyer. John had his ups and his downs, but he represented a lot of folks that needed help, and they couldn’t get a better job than he would do. It’s a shame,’’ says Walter Umphrey, a partner in Beaumont’s Provost Umphrey who famously partnered with O’Quinn and several other lawyers in 1996 to represent the state of Texas against the tobacco industry in a case that resulted in an enormous settlement. “Just his name on the pleadings and his presence was valuable in evaluation of trial and settlement," Umphrey says of O'Quinn.
-- John Council

One less potential candidate in Texas AG’s race

State Rep. Dan Branch, R-Dallas, announced today that he will seek re-election to his District 108 House seat, not election as Texas attorney general. According to a press release from Branch’s campaign, he received widespread support to run for AG in 2010. Branch, a shareholder in Winstead, writes in the release, “While the prospects for a successful run looked good, with only a month to go now until filing, the prospect of an open seat appears unlikely.” Attorney General Greg Abbott, a Republican, has been contemplating a run for higher office but has yet to announce his plans. A call to Abbott's campaign office was not immediately returned.
-- Mary Alice Robbins

Corpus Christi attorney David Bonilla indicted, to lose license

Corpus Christi attorney David Bonilla, State Bar No. 02600200, will lose his Texas Bar license on Nov. 29, after a grievance committee panel found he committed professional misconduct by allegedly violating Texas Disciplinary Rules of Professional Conduct 1.01(b)(1), 1.03(a), 1.03(b), 1.08(a) and 1.15(d). The Judgment of Disbarment signed Oct. 15 by James D. Granberry, a lawyer in Corpus Christi who is chair of Evidentiary Panel 11-2, orders Bonilla immediately to refrain from taking any new legal business or new clients, or to appear in court except for one pending divorce bench trial. Bonilla, of the Law Office of David Bonilla, did not return a telephone message left at his office on Oct. 27. His attorney, James Harris, a principal in Harris & Greenwell in Corpus Christi, did not immediately return a telephone message. The panel found Bonilla was hired in 2004 by a client to handle a claim for personal injuries from a car accident, but Bonilla neglected the matter, failed to reasonably communicate with the client, and then negotiated a settlement with the client regarding his "legal negligence" without advising the client he needed independent representation. Bonilla has other legal concerns. On the same day he was disbarred, a Nueces County grand jury indicted Bonilla on six counts of misapplication of fiduciary property -- three third-degree felonies and three state jail felonies -- and one count of first-degree felony theft, all in connection with a total of more than $200,000 allegedly owed to six clients. Nueces County District Attorney Carlos Valdez says Bonilla, who was licensed in 1979, has not yet been arraigned on the charges. Ron Barroso, a criminal defense attorney in Corpus Christi who represents Bonilla, says his client will enter a plea of not guilty. “We are still trying to reach a resolution, an agreement with the DA in this matter,” Barroso says. 
-- Brenda Sapino Jeffreys

Laredo judge will speak at tomorrow's annual Red Mass in San Antonio

San Antonio’s legal community will be celebrating an annual Red Mass Thursday at 6 p.m. in San Fernando Cathedral, says Sister Grace Walle, St. Mary’s law school minister. San Antonio Archibishop José H. Gomez will be the principal celebrant of the Mass in the cathedral located at 111 Main Plaza. Reverend Rudy Vela, St. Mary’s University vice president for mission and identity, will deliver the homily, and 341st District Judge Elma Salinas Ender of Laredo will give reflections, Walle says. A procession from the Bexar County Courthouse to the cathedral will begin at about 5:45 p.m., she says. This is the 57th year that the law school is coordinating the Mass, a Roman Catholic tradition noting the October beginning of the judicial year, Walle says. The event is supported by San Antonio’s legal associations including the Catholic Lawyers Guild of San Antonio, she says.
-- Jeanne Graham