*1 immеdiate administrative equivalent relief injunctive relief is the plain- available to
tiffs, and thus not meet its burden of
showing plaintiffs were required to
exhaust I administrative remedies.11
would not reach the plaintiffs’ other ex- arguments.
haustion Accordingly, would
affirm the court of appeals’ judgment re-
manding the case to the trial court for
further proceedings. LOPEZ, Sr., Lopez,
Leonel Zulema M. Lopez, Jr., individually
and Leonel Eloy
and on behalf of the Estate of
Lopez, deceased, Petitioners,
MUÑOZ, REED, HOCKEMA & L.L.P. Muñoz, II, A. Albert David A. Roger Reed,
Hockema and H. individ-
ually Muñoz, Hockema & d/b/a
Reed, Respondents.
No. 98-0994.
Supreme Court Texas.
Argued Oct. 1999.
Decided June 2000.
Rehearing Overruled Aug. Teachers,
11. Houston Fed’n Local 2415 v. Dist., Indep. Houston Sch. *2 bond; therefore,
posit in lieu of cost law firm did not breach holding charging fee. This the additional clients’ breach of fidu- disposes of the *3 ciary duty that claim claim because alleged entirely upon based However, the trial breach. because court’s improperly disposed of fraud, negligence, clients’ and DTPA claims, to we remand them the trial court for proceedings. further Patton, Pozza, Timothy Dan San Anto- I nio, for Petitioner. Dubose, Gunn,
Kevin H. M. Background David Ho- Townsend, Houston, gan Dubose & Rose (MHR) Muñoz, Hockema & Reed Vela, Moss, Barger R. & Darrell L. Bar- represented Lopez family law firm ger, Bargеr Hennansen McKibben & Vil- wrongful-death against Westinghouse suit larreal, Christi, Billy Corpus Shepherd, Electric Their Corporation. contingent Allen, Houston, Scott & Cruse Henderson forty percent any fee contract assigned Respondent. for MHR, recovery forty-five to percent and appealed higher case “is to court.”1 Justice O’NEILL delivered the opinion After jury returned a verdict Court, joined HECHT, by Justice Westinghouse twenty-five in excess of mil- ENOCH, OWEN, Justice Justice Justice dollars, lion parties began settlement BAKER, ABBOTT, Justice and Justice negotiations. negotiations While were HANKINSON, Justice Chief ongoing, rendered judgment court PHILLIPS Justice GONZALES as to verdict, on the per- deadline for Parts and IV. fecting appeal an October was 1991. The contingent fee contract that under- mid-October, By Westinghouse had ten- dispute plaintiffs’ lies allowed law tatively agreed pre- to a settlement.2 To charge firm to percent additional five serve its right to should the set- “appealed fee in event the was case on through, Westinghouse, tlement fall higher court.” must decide 18, 1991, We whether deposit October filed a cash law firm breached lieu of a with the trial cost bond court. charging its client the fee when MHR and the met on October defendant, preserve right ap- its and MHR’s discuss the settlement peal, filed a cash lieu of a fees. The estate and tаx Lopezes’ cost attor- with shortly neys, family attorney the trial and an ac- bond court before signed. meeting. settlement documents countant attended this were We explained hold the case its fee would higher forty-five when the defendant initiated of the recov- $6,750,000, ery, no appellate process by filing a cash de- one voiced portion Lopezes' Although appeals 2. 1. The relevant the court wrote that [settle],” tract with MHR reads Westinghouse’s attorney "agreed as follows: rendered, conflicting services and to be there was For rendered. assign any monies or other testimony attorney accepted 40% as to whether I/we property appealed recovered. the case is If merely reported the settlement or that he ato court then monies 45% approval. would take for his client property herein recovered is as- recovered, signed. nothing If owe I/we attorneys nothing. said objection. ultimately The settlement was trial court for consideration the Lo- signed Among jus- October oth- claim for fees. pezes’ attorneys’ on One documents, tice, members Lopez family concurring dissenting, agreed er reflecting signed a settlement statement had majority that MHR breached forty-five percent percentage. but concluded that the acсording to The funds were distributed remedy appropriate was forfeiture statement, Westing- (Dun- the settlement at MHR’s entire fee. See id. 744-45 ap- house no further action can, J., took concurring dissenting). peal. Lopezes petitioned this Court later, years About three MHR received review, arguing the court the firm refund requesting letter *4 ordered MHR to should have remit five percent just percent and not the five entire fee refused, family. MHR When argu- overcharge. cross-petitioned sued, of alleging breach of breach that, law, not ing a matter of it did as fraud, and fiduciary duty, negligence, with, fiduciary duty breach its contract Lopezes sought DTPA The violations. to, the Lopezes. forfeiture of the entire fee. The judgment summary moved for II fiduciary duty
breach and contract of claims the other and moved to sever Breach of Contract claims. MHR a cross-motion for filed judgment alleging that the doc- summary of We first consider breach “ac- trines accord and satisfaction and that Lopezes argue contract claim. The ceptance of the Lo- benefits” defeated higher court” is phrase “appealed barred pezes’ claims that limitations ambiguous and be construed should claim. breach drafter, v. against its MHR. See Gonzalez summary judg- MHR also claimed that the Co., Mission American Ins. 795 S.W.2d ment no contract breach evidence showed (Tex.1990). that, 734, They argue 737 of law. as matter nature of the rela fiduciary because of the tionship, attorney any The court denied the sum- contract between Lopezes’ trial motions, and a client a reason mary and severance construed judgment Keck, summary Mahin granted equitable motion able manner. Cf. Am., N. 20 The & Cate v. Insurance Co. judgment except as to limitations. (Tex.2000); Griffith, Archer v. court See 980 S.W.2d 692 appeals reversed. S.W.3d (Tex.1964). 735, Lo 738, The held that 390 S.W.2d 739 appeals court agreement by provision contend pezes MHR breached the fee rate, forty-five subject only at issue one reasonable percеnt appeal charging although ex meaning, ethical the contract breach was also clear. meaning 742- is less than duty. pression See id. at breach of of construction general these rules “appealed 43. The court reasoned While ambiguous con we construe higher something apply means more when court” sus reasonably are by tracts contracts that initiating appellate process than interpretation, more than one ceptible in lieu a cost bond. filing a cash language at issue further we hold that the contract appeals id at 742. The court See not and that MHR did unambiguous did is held that MHR’s affirmative defenses Re Heritage and re- the contract. See recovery, Lopezes’ not defeat NationsBank, sources, $750,000 v. 939 S.W.2d Inc. versed and rendered (Tex.1996) unam that an (stating 121 Lopezes, representing for the five as writ will be enforced biguous id. at 742. contract See settlement. ten). to the court case appeals remanded
861 than something more initiat- ambiguous court” means Whether contract question ing process. is a of law for the court to decide. appellate Enters, LaGuarta, See R & P Gavrel & what Although stating at 742. Kirk, Inc., 596 S.W.2d be, the court of “something might more” contracts; In construing we must ascertain held that intentions give parties’ effect meaningful “a review of antiсipates expressed in the document. See id. A consid- appellate record and a careful ambiguous given contract is not if it can be arguments presented eration legal meaning a certain or or in definite problem appeal.” at 742. The terpretation. Trans Columbia Gas however, it is that ex- approach, Gas, Ltd., mission v. New Corp. Ulm pands language the actual (Tex.1996); Friendswood difficult, impossible, makes if not to de- Co., Dev. + Co. v. McDade a case certainty termine with when does not Ambiguity “appealed.” has been simply arise because the advance process contract; appellate many involves conflicting interpretations of the rather, exist, ambiguity steps, for an both transmitting such as court *5 interpretations record, must be reasonable. See preparing responding to the Gas, 589; Columbia S.W.2d at Nation briefs, and oral presenting argument. See Indus., Inc., al Union Fire Ins. Co. v. CBI Tex.R.App. 54(a), 74, 75, 707 P. S.W.2d 907 S.W.2d Because (Tex.Cases) XVIII, LXXIV-LXXVIII given here the language can be 1997). (Tex.1986, The rules amended re definite legal meaning, and it is not rea quire appeals the court of to write an sonably susceptible to more than one opinion addressing all raised issues meaning, unambiguous. it is necessary appeal’s disposition. Tex.R.App. (Tex. 90(a), 707 P. By filing cash in lieu of deposit Cases) 1997). (Tex.1986, LXXXV amended bond, cost Westinghouse “perfected” an issues, may After opinion appeal appellate under the procedure rules file the court rehearing, motions for which in effect the underlying when case settled. Tex.R.App. then consider decide. See 40(a)(1), (Tex. Tex. P. 707 S.W.2d R.App. (Tex.Cases) Cases) 100, 707 1997).3 P. (Tex.1986, LI amended (Tex.1986, appellate that, rule LXXXVI-LXXXVII amended provided further 1997). bond, point “meaningful absent a supersedeas a cash At what review” does suspend judgment not and execu occurs is not during ongoing process tion may issue “as if no ... appeal had readily discernible. We believe Lo- Tex.R.App. 40(a)(5), been taken." P. lan pezes’ interprеtation (Tex.Cases) (Tex.1986, LII amend unwork guage is too broad therefore 1997). Thus, ed plain language rule’s appeal encompass may able. That an indicates an was “taken” and the appeal not multiple stages and various does mean appellate jurisdiction was court’s invoked language ambiguous. that the contract is when Westinghouse deposit. made its cash rules, appellate ap Under our former Miller, Hiersche, See Bums v. Martens & appeals’ peal was “taken” the court (Tex. P.C., Hayward, 909 S.W.2d deposit in jurisdiction invoked when a cash curiam); 1995)(per Co. Ammex Warehouse Thus, lieu of a cost was filed. when bond Archer, deposit, its Wеstinghouse made cash contend, un higher case to a court” Lopezes “appealed and the court of was appeals agreed, “appealed higher that der the contract’s terms. Tex.R.App. 25.1(a) Appellate
3. Rule
of the Texas
filed with the
court clerk.”
P.
Rules
provides
appeal
25.1(a).
Procedure now
that
is
“[a]n
perfected
appeal
a written notice of
is
when
Legal
a contract
is
Texans for Reasonable
Fees
unambiguous
When
(TRLF)
arguing
filed
has
an amicus brief
Heritage
we will
it as written.
enforce
despite
that
unreasonable
Resources,
939 S.W.2d at
We hold
MHR
agreement
the fee
and that
breach
highеr
the ease was
fiduciary
exces
duty
charging
ed its
court”
Westinghouse perfected
when
Alternatively,
sive
TRLF contends
fee.
Accordingly,
a matter
appeal.
as
of law
duty
fiduciary
by failing
MHR
breached
MHR did not breach the contract
“if
that the phrase
inform
charging
appeals
fee.
appealed
the case is
Therefore,
not
the trial court did
err
might colorably
mean
interpreted
granting
summary
MHR
on the
“if
something
perfect
other than
claim.
Lopezes’ breach of contract
these
have
ed.” Whether
not
theories
merit, they are not
us.
before
Ill
theory
submitted no
support
than breach
contract to
Duty
Fiduciary
Breach оf
duty
They
breach of
claim.
did
fiduciary
duty
The Lopezes’
fiduciary
breach of
forty-five percent ap-
allege
claim,
pleadings
in their
presented
peal rate was excessive when the contract
motion,
grounded
summary judgment
made,
charging
was
the additional
solely
theory
five
was breach of
on the
breached
irrespective of the contract’s
Nor
terms.4
its contract. As
court of
not-
allege
MHR concealed the
they
ed,
“the
tied its breach of
family
improperly delayed
additional fee charge,
claim
to its breach of con-
so
execution of the settlement
that West-
tract
at 740. In
claim.” 980 S.W.2d
*6
perfect
appeal, or oth-
inghouse would
an
motion,
summary judgment
Lopezes
ap-
manipulated the settlement and
erwise
argued
summarized
facts
peal
charge
to
process
order
MHR’s
the contract.
behavior breached
fee.
Their
that MHR breached its
argument
duty
immediately:
followed
fiduciary
judg
summary
from
On
“Further,
constitutes,
such conduct
as a ment,
that the
we cannot consider issues
law,
matter
the Defendant’s
of
breach of
present
not
to the trial court.
movant did
obligation to the Plaintiffs.” No-
fiduciary
Cates,
Ins. Co.
See Cincinnati Life
pleadings,
where in their
their motion for
(Tex.1996);
City
Travis v.
response
summary judgment,
to
(Tex.1992).
94,100
Mesquite,
of
summary judgment
for
did
motion
already
the trial
We have
decided
Lopezes argue
that MHR breached its
granting
err
MHR’s mo
court did not
its
breaching
summary
other than
on
judgment
tion
the breach
for
Although
later posited
Lopezes
contract.
counsel
Because the
of contract claim.
duty
Lo-
duty
fiduciary
that MHR had
to inform the
of
premised
breach
breach,
alleged
that there was
alternate colorable
contract
pezes
claim on MHR’s
clause,
neces
our
on the contract issue
triggering
construction of
conclusion
fiduciary
disposes
this
of the breach
Lopezes
pleaded
sarily
neither
nor briefed
theory.
duty claim.5
rejected in
appeals,
appeal,
we have
According
evi-
tion of an
which
court of
parties
dence
that the
understood the
this
showed
the context of
case.
settled,
appealed
case
MHR
not be
would
fiduciary duly
because it
breached
also
5. We note
the court
appealed
would
when it
knew the case
fiduciary
Lopezes'
that the
breach of
cluded
charged
percent.
the additional five
See
predicated
was
on their contract
duty claim
743. But
conclusion is based
S.W.2d at
IV accord and upon express fense rests Other Defenses Claims/Affirmative agree which imрlied, parties to the an existing obligation by discharge pleaded negligence, violations, payment DTPA a lesser tendered and fraud. The means of summary not move for on judgment Henry accepted. See Jenkins v. C. Beck these claims but rather sever moved to Co., 454, 455 449 S.W.2d them. The motion to sever was combined Lopez family’s MHR claims judgment with their for summary motion agreement accept the settlement after on the breach and breach full forty-five disclosure of the ad In fiduciary duty claims. MHR response, accord, ditional fee constituted an which judg- filed a for summary cross-motion Lopezes accepted was satisfied when the (1) ment arguing had payment part of their of the settlement (2) satisfaction, reached an accord However, funds. for this defense to pre Lopezes accepted the the set- benefits of vail, must be a and an dispute there unmis tlement and estopped were therefore from communication creditor that takable it, (3) contesting the breach of upon tender of the sum is reduced limitations, duty claim was barred that acceptance satisfy condition will (4) there breach was no of contract as a underlying obligation. id. par matter of law. The trial court denied specifically intentionally ties must Lopezes’ judg- severance and summary agree dischаrge par of one motions, ment summary and rendered existing obligations. See ties’ Industrial judgment for all Lopezes’ MHR on 100,104 Co. v. Finley, Ins. Life claims without specifying the grounds words, In prevail its ruling. upheld We have defense, MHR required present summary judgment court’s in MHR’s favor summary judgment that the evidence Lo- on the Lopezes’ breach of contract and pezes disputed specifically the fee and of fiduciary claims. We intentionally agreed relinquish any next decide whether the trial proper- court ly they might granted summary claims have had in MHR’s *7 fraud, favor on the Lopezes’ remaining alleged knowingly for its To overcharge. negligence, and DTPA claims. relinquish arising claims out of MHR’s al оvercharge leged Lopezes the would have The affirmative defenses asserted overcharge to know existed. MHR arguably that could defeat the Lo- record, in There is no evidence howev pezes’ remaining claims are and accord er, dispute that there was a fee between acceptance satisfaction and of the benefits. Lopezes Lopezes and MHR when MHR contends that trial court proper- accepted the settlement. “A valid accord ly granted summary judgment on these requires that there initial satisfaction defenses, and all of Lopezes’ therefore ly legitimate dispute be between the remaining claims are barred. The Lo- expected.” about what was hand, on pezes, the other contend that Hamel, 368, v. Bueckner MHR was not to summary judg- entitled 1994, (Tex.App writ [1st Dist.] ment on these affirmative defenses. We . —Houston denied). Accordingly, MHR was not enti agree Lopezes, with consequently fraud, summary on judgment tled to its accord negligence, remand their DTPA claims to the court.6 defense. satisfaction prop- MHR disposed improperly claims that were claims remain erly plead negligence, fraud or but concedes and should remanded unless estab- Lopezes pleaded summary judg- DTPA violations. lished that it was entitled to Nonetheless, parties agrеe both that whatever ment its affirmative on defenses. defense, only I remaining Accordingly, ac mand that reason. benefits, join judgment part. I write
ceptance
species
is a
the Court’s
proposition
Co. v.
further
to advance the
quasi-estoppel. See Atkinson Gas
Albrecht,
fully
attorneys
(Tex.App.—
878 S.W.2d
owe
denied).
Quasi-
of their
Corpus
explain
employ-
the ramifications
Christi
writ
asserting,
precludes
party
from
ment contracts
their clients.
estoppel
disadvantage,
right
to another’s
inconsis
contin-
Here
whether a
we
decide
position previously
tent with a
taken. See
firm,
a law
Mu-
gent fee contract between
applies
id. The doctrine
when it would be ñoz,
Reed,
client,
and its
Hockema &
person
to main
unconscionable
allow
forty
the firm to
Lopez family, entitles
position
tain a
inconsistent with one
Lo-
percent
forty-five
acquiesced,
which he
or from which he
mil-
recovery
settlement
of fifteen
pezes’
id;
v.
accepted a benefit. See
Vessels
Westinghouse
lion dollars from
Electric
Corp.,
765-66
Anschutz
823 S.W.2d
was finalized
Corporation.
settlement
denied).
1992, writ
(Tex.App. — Texarkana
days
filed a cash
Westinghouse
few
after
For
reasons
in connection
considered
deposit
preserve
of cost
lieu
bond
defense,
with the accord and satisfaction
Tex.R.App.
40(a)(1),
P.
right to
appeal.
a lesser
Lopezes’
acceptance
initial
(Tex.Cases)
(Tex.1986,
LI
portion of the settlement
is not inconsis
1997).
lawyers’ portion of
amended
they
tent
with
later assertion
depends
the fifteen million dollars
Consequently,
were
more.
entitled to
forty
language
provides
judg
summary
MHR was not entitled to
services ren-
percent contingent fee for
upon
acceptance of
ment based
dered,
case is
forty-five percent
but
benefits defense.
“appealed to a
court.”
Court
high-
decides that the term
V
plainly
unambiguously
er court”
judg-
appeals’
We reverse the court of
one
files a
party
means the momеnt that
Lopezes’
ment on the
breach of contract
bond
cash
lieu
a cost
claims,
render
court,
right to an
thereby preserving its
nothing
that the
take
disagree.
appeal.
respectfully
claims,
Lopezes’
on those
and remand the
acknowledges,
As the
our stan-
Court
fraud,
DTPA
negligence, and
claims
direct
of contract construction
dard rules
trial court.
us to ascertain the true intentions
expressed in the terms of
parties as
opinion
filed an
Justice GONZALES
Coker,
instrument.
See Coker
part,
concurring
part
dissenting
We
give
joined.
in which Chief
PHILLIPS
Justice
*8
plain, ordinary,
gen-
tract terms their
GONZALES, joined by Chief
Justice
erally
meaning unless the instru-
accepted
PHILLIPS,
concurring
Justice
in
used
that the
them
parties
ment shows
dissenting.
Heri-
or different sense. See
a technical
NationsBank,
Resources, Inc.
939
join
tage
opinion,
I
Part
IV
the Court’s
the
fraud,
Neither
family’s
negligence, S.W.2d
Lopez
that the
“ap-
nor the Court contends that
parties
be remanded.
I
and DTPA claims should
is a technical
pealed
higher
a
the
conclusion but not
to
agree with
Court’s
Court, howev-
of art. The
in
III that the Muñoz
term a term
reasoning
Part
er,
ignores the tenets of contract construc-
the
firm
not breach
However,
special-
a
by adopting
technical
family.
I
tion
alleged by
the
to a
“appealed
the
meaning
ized
term
opinion
of the Court’s
dissent from Part II
Court,
public
the
would
higher
I
court.” While
because,
conclude that
unlike the
some
that
act
generally
re-
understand
is
and would
ambiguous
specifies
be taken
that
the law firm is
appellate process,
to initiate the
contract
that
it
to
that
fee for
defies common sense
conclude
entitled to the additional
services
appeal
the
the
if
is
general public
right
pre-
would understand
rendered
the
point
really happened
term
all
party-
to mean the
time a
served—which is
that
merely provides
files a
in lieu
bond.
The contract
deposit
cash
of a cost
here.
“appealed.”
if
The Court’s own words confirm the ambi-
thе
the case is
guity
Thus,
expands
about
term.
The Court
it is
Court
filing
choosing
cludes that the
of a
deposit
language by
prepa-
cash
contract
lieu
a
ratory stage
appellate process.
of cost bond results
And
appeal,
yet
filing a
certainty
states that
cash
lieu
as
in contract desired
deposit
for the
Court,
ap-
of a cost
preserves
right
surely
bond
a
can
be achieved
peal
suggesting
appeal
yet
that an
determinable
choosing
equally
has
—
only
occur.
861. Generally,
appellate process.
S.W.3d
events in the
legal profession
any
members of the
have
considering
plain meaning
When
appreciate
filing
reason to
know
court,”
“appealed
higher
to a
I
the term
deposit
cash
pre-
in lieu of a cost bond
multiple
believe there are
inter-
reasonable
right
served a
to appeal under the old
First,
pretations.
reasonably
this term
rules.
Such a limited
specialized
procedural
mean the first
or techni-
could
meaning
plain
cannot be the
and common
step
preserve
right
cal
taken to
meaning of
purposes
the term for
of this
interpretation adopted by the
—the
contract.
Second,
Court.
the term
to a
says
filing higher
Court
when a party
chooses
court” could mean
of a
cash
in lieu of
expressеs
appel-
cost bond as
his or her
to an
complaint
point in
“appealed”
time a case is
because
late court and seeks
Under this
redress.
view,
that event provides certainty. 22
term
would
“appealed”
corre-
at 861. The
spond
appellant’s
Court dismisses the court
filing
with
appeals’
that “appealed
high-
decision
filing
brief in the court of
Third,
er court”
something
means
than ini-
petition
more
for review this Court.
because,
tiating
appellate process,
“appeal-
one could conclude that the term
Court explains,
ex-
contemplates
such
construction
ed”
act.
In that
completed
pands
case,
the actual contract
language
par-
could
when the
“appealed”
mean
difficult,
“makes it
if not impossible,
fully
arguments
to ties
expressed
have
determine
certainty
appel-
with
when
case
and have submitted
to an
the case
appealed.”
has been
Ltd., 1,1996). 587, These (Proposed 589 In Final Draft No. however, circumstances, ambiguities some courts will suggest reasons favor party construe the contract to one against be construed contracts should of light relationship lawyer in a lawyer-drafter. Usually a is Inc. v. public policy. Temple-Eastex, See position better to understand the terms of (Tex. Bank, 793, 672 Addison S.W.2d 798 lawyer than a contract drafted 1984) (“a writing generally construed is Clients, all, are client. after clients be- strictly against most its author and such they legal cause advice seek to need a manner as to reach a reasonable result legal lawyers greater hire with skill apparent consistent with the intent of experience. Additionally, lawyer is usu- For when an insur parties.”) example, position in a ally stronger bargaining is ambiguous, ance contract is generally experience negotiating has more insurer. State against construed See contracts, settlements, arrange- and fee Farm v. 968 Vaughan, Fire & Cas. Co. Finally, lawyers, ments. of their because 931, court 933 One training experience, are in a better equipment against construed an lease dis- position than most of their clients to party responsible drafter because con- ambiguities cover and correct in the choosing ambiguous language tract. could have used clearer terms. Gener Way K Corp. al Corrosion Services v. reasons, generally For these I would (Tex. Co., Inc., 578, Equip. 631 580 ambiguous lawyer-client construe writ). 1982, However, App.- Tyler no — But against lawyer-drafter. tracts rule construc applied Court has not unwilling adopt is such even the Court tion to between employment construction, rule of at least should attorney client.1 objective meaning remand because The a law- special relationship between the contract term yer and to conclude that an client leads me is ambiguous. ambiguous should contract between them family alleges that the lawyer- generally against the be construed duty Muñoz law firm breached its drafter. Restatement Contracts Texas, In their we by breaching contract. against suggests construing contracts attorneys highest hold standards justified when the drafter is drafter dealings ethical conduct in a know of uncertain- position better Griffith, Archer v. clients. See 390 meaning drafting party ties when 735, highest 739 position. stronger bargaining has attorney his or when the contracts with (Second) § Contracts 206 Restatement position takes a her client or otherwise (1981). com. The Restatement of As or her client’s intеrests. adverse to his Governing adopts
Law Lawyers, which observed, fiduciary] is “[a Justice Cardozo for lawyer-client similar construction rule something than the morals held stricter contracts, lawyers adds the rationale that alone, honesty place. of the market Not are than most to detect more able clients most of an honor the punctilio but repair lawyer-client omissions sensitive, (Third) of behav- is then the standard agreements. See Restatement Salmon, 458, 249 § v. N.Y. Governing Lawyers com. h ior.” Meinhard Law 29A 191, however, courts, Ramsey adopted County, 322 v. N.W.2d Many Cardenas have 1982); (Minn. Skelly lawyer-client Oil rule of construction Hitchcock v. 193-94 552, 260, strictly Co., (1968); will be construed cоntracts 440 P.2d 554 201 Kan. See, Myers lawyer. e.g., Agnew 518, Vans v. Fort Irwin, 221, Or. 91 P.2d 523 In re 162 244, Dist., (5th Drainage 69 246 Cir. F.2d 736, Potter, (1939); Cal. 183 P. Bennett v. Co., 1934); Q. 363, Waugh v. C. F.2d & Miles, (1919); Falloon 157-58 (7th Cir.1926); Sparkman v. Estate of (1918). N.W. Neb. (Miss.1994); Smith, *10 So.2d 1261 639
867 545, (1928). legal on Accordingly, customary lawyers 164 N.E. 546 a reliance the lawyer lawyer conduct her a should ful Consequently, his or business advice. honesty loyalty, always ly meaning explain inveterate to the client the keeping impact any the client’s best interest mind. of contract between them. Here, example, best serve fiduciary breach Clearly, duty may a of client, interests, protect and to their own lawyer accepts arise if a fees that explained could the Muñoz firm have lawyer by is not entitled to contract. But fаmily at the Lopez time every necessarily of contract is the firm signed was believed would If fiduciary duty. lawyer breach of additional moment entitled to an fee the acts in faith good under a colorable inter- right to Westinghouse preserved ap contract, pretation lawyer aof does not peal, though agreement princi even an necessarily act a client’s interest. ple had been reached to settle the case. (Third) Governing See Restatement of Law Lawyers (Proposed § 28 Final Draft No. Another ethical consideration de- 1996) 1, (limiting professional discipline to lawyer’s serves mention is the fiduciary fulfill a intentional failures to valid con- duty an not to collect unconscionable fee tract). Here, accepted the Muñoz firm law Disciplinary from his client. See Tex. R. fee under one of several 1.04(a); Foreman, Nolan v. Pkof. Conduct interpretations reasonable of (5th Cir.1982) 738, (holding 665 F.2d 741 and the Lopez family allege does not under an attorney Texas law breaches a acting firm bad faith. Accord- by charging client ingly, even if the fact were finder to con- fee). if excessive A fee is unconscionable clude that the term competent lawyer could not form reason- to a point refers in time after the able belief that fee is See reasonable. right to preserved, would hold DisciplinaRY 1.04(a). Tex. R. Prof. Conduct the Muñoz firm did not breach its any depends The reasonableness of fee fiduciary duty to the Lopez family by the circumstances services. breaching its contract. Disciplinary 1.04(b) Tex R. Prof. Conduct
But there are two (detailing weigh determining other ethical issues in factors to case, fees); about which family reasonableness Restatement Governing complain, does not that nonetheless de (ThiRd) Lawyers, the Law 46, 1, §§ serve discussion. first relates to a 47 Final No. (Proposed Draft 1996). lawyers’s duty fully honestly however, Generally, lawyer’s inform his or client of arrangement. dispropor- her a fee is unreasonable it is grossly Disciрlinary R. PROF. Conduct tionate to the work and the risks. See Tex. Disciplinary 1.03(b), 1.04(d) (1989), 1.04(b); reprinted in Tex. Tex. R. Prof. Conduct 2, Tatterson, app. Legal tit. A subtit. Committee on Ethics v. Ann., Gov’t Code G (1998). 356, (1986); fiduciary relationship 107, 177 between W.Va. 352 S.E.2d 113 attorney Moriber, client requires “absolute and The Florida Bar v. 314 So.2d candor, 145, (Fla.1975); perfect openness honesty, 149 see also Mo- General Corp. Bloyed, absence of concealment or tors v. decep (Tex.1996) tion.” v. Carrigan, (discussing Perez Kirk & method to lodestar (Tex.App. Corpus lawyer’s calculate fees class actions as — denied); writ by multiplying Christi see also Willis calculated number of (Tex. Maverick, expended appropriate hourly hours 1988). factors, Fundamentally, lawyer rate a variety should determined class, always act in the A such as client’s best interests. the benefits obtained for involved, lawyer and client’s are often the negotiations complexity of issues counsel, lawyer in favor expertise preclusion imbalanced because of oth- inequalities er legal acceptance information client’s work due *11 suit, class cus- hourly action and the rate charged region
tomarily for similar FM PROPERTIES OPERATING work). legal COMPANY, al., et Appellants, compensated fee contract here lawyers for “services rendered.” There is in the firm evidence record some work connectiоn AUSTIN, Appellee. The CITY OF
both the cash deposit before and'after No. 98-0685. lieu of cost bond was filed. But the record Lopez family suggests that Court of Texas. Supreme had Westinghouse agreed principle to settlement, substantially lowering the risk Argued Dec. 1998. firm—a risk in all con- existing law June 2000. tingent might not Decided fee contracts—-that it may collect its fees. While Rehearing Aug. Overruled 2000. lawyer entitle fee for substantial work, may little or a lawyer no nonetheless his required by fiduciary duty
be or her Additionally, the fee. a law firm
decline
may provides its if it services,
little no but still collects part recovery clients
substantial pending
the face of a settlement.
By the law 'firm did a appearances, all
good job representing its client
Westinghouse. The firm obtained a twen-
ty-five jury par- million dollar award
ticipated in million negotiating fifteen lawyers
dollar settlement. The should be
fully compensated for their work and they begrudge
risks assumed. I do not demanding compensation
them for for ser- according
vices rendered to their contract.2 clearly supported
But the demand must be construing And when the contract. clients, it is lawyers and
contracts between enough simply say
not a contract consider- contract. There are ethical overlaying
ations the contractual relation- just
ship. Lawyers mindful should obligations
of these ethical as their obligations.
tractual reasons,
For part these concur in in part.
dissent appeals' appealing has cent the court of I note that the law firm indicated per- judgment. willingness repay five