*1 differs from that an exact one-third to two-thirds ratio of wording Rule 2.07’s 2.02, public attorneys members to were re- 2.17. Rule which in Rules 2.02 and quorum a could be achieved quired, if composition of committees and governs panel evenly by were divisible three. whole, that a explicitly a states as panels proposed solution to this Allison’s mathe- attorney members to one-third two-thirds matical conundrum —to increase ratio required: ratio is “Each public members members, attorney public members must consist of no fewer than Committee if including public either two members members, whom must nine two-thirds of members, attorney there are three or ..., whom attorneys be and one-third of removing attorney one of the members for All public be members. Committee must attorney public a one-to-one member to two-thirds composеd panels must support ratio —finds no in the rule. We public and one-third members.” attorneys hold instead that the factor-of-two rule DisciplinaRY (emphasis P. 2.02 add- Tex.R. applies only when there is an even number ed). 2.17, though slightly worded Rule Thus, attorneys. if there are four attor- 2.02, require- differently than restates this (two two) ney quorum members sets of Evi- evidentiary panels: ment for “Each two If require public would members. Panel must have a ratio of two dentiary lawyers, public there were six three mem- every mem- attorney public members for required. bers would be But for five law- ber_” added). 2.17 (emphasis Id. at yers, public adequate. two members is means that mandatory “must have” four, seven, Or, eight, For but for three. flexibility require- built into the there is attorney as in this when three mem- member, ment; every public there present, only public bers are one member attorneys. must be two necessary. Accordingly, we hold that is panel attorney of three members and stating quorum composition re- hearing public one member Allison’s quirement, though, Legislature said: requirement. quorum satisfied Rule 2.07’s quorum panel griev- “A of a of a district We therefore affirm the Board of Disci- ance committee of the state bar must in- Tex.R.App. P. plinary Appeals’ judgment. member for each two public clude one 60.2(a). attorney members.” Tex. Gov’t Code 81.072(j). § while there is a slight And rule, in the corresponding
variation result
agree with the Board that the is the “A quorum
same. Rule 2.07 states must one member for public include least SMITH, al., Petitioners, Paul H. et every present....” two members Disciplinary Though P. 2.07. Alli- Tex.R. O’DONNELL, Executor of Thomas argues reading provisions son these Denney, Estate Corwin public every one member for require only Respondent. of two” is inconsistent “grоup rules, we agree with the other No. 07-0697. Disciplinary Appeals Board of that the lan- of Texas. Supreme Court guage compels of the statute and the rule Argued Sept. this result. Allison concedes that literal 26, 2009. argument require of her Decided June application (and impossible) public minimum 1. 5 lawyers. members to counter the three If *2 L.L.P., Wagner, TX, Houston for Re-
spondent.
Justice O’NEILL
opinion
delivered the
*3
Court,
in which Chief Justice
JEFFERSON,
BRISTER,
Justice
Justice
MEDINA, and Justice
joined.
JOHNSON
O’Donnell,
Thomas
as executor of
Denney,
estate of Corwin
sued Cox &
Smith,
attorneys,
Corwin’s
for
mal
practice,
fiduciary
breach of
duty, and
gross negligence/malice arising out of ad
vice
attorneys gave
Corwin while he
serving
as executor of his wife’s es
tate. The trial court granted summary
judgment for the attorneys on all claims.
appeals
The court of
reversed the sum
mary judgment on
legal malpractice
claim based on our holding in Belt v. Op
Blend,
penheimer,
Tate, Inc.,
Harrison &
(Tex.2006).
tioner.
him in
independent
advise
administra-
III,
Webb,
L.
Vincent
Marable
Paul
tion of her
and consulted the law
P.C.,
TX, Brett
Mark
firm
Wagner,
regarding
separate
Wharton
versus com-
Long, Larry Doherty, Doherty Long munity
couple’s
W.
J.
character of the
assets.
Corwin,
of action had accrued to
he
wife had
that no cause
and his
According to
lifetime,
and thus
in Automation In- Corwin
that stock
orally agreed
lawyers.
dustries, Inc.,
prop-
O’Donnell lacked
with
separate
be his
Smith,
04-04-00108-CV,
No.
in Gilcrease Oil Co. would O’Donnell
erty
stock
(Tex.App.-San
at *3
An-
a memo- 2004 WL
prepared
& Smith
be hers. Cox
2004).
Dec.15,
and re-
tonio
We vacated
that the Automa-
advising Corwin
randum
light
of our
to manded
reconsideration
presumed
stock was
tion and Gilcrease
Belt,
ble. 192 at 784. At common S.W.3d Smith Cox & contends Barcelo bars all damage personal actions for to real or legal malpractice brought by suits non- the owner. property survive death the clients, exception of estate-plan- Thus, “legal malpractice Id. we held that ning malpractice brought by claims execu- pure alleging claims economic loss survive tors, adopt in like that Belt. To the rule in favor of a deceased client’s estate.” Id. place Smith suggests Cox & would us at 785. states, among alone the and would unnec- Having essarily identified these claims as surviv- immunize who commit able, malpractice. we consider whether there is None must of the concerns we an any exception preventing third-party malpractice reason for voiced about suits bringing apply malpractice brought by executors them. Cox & from to suits again personal Smith on our in Barce- The holding representative. relies estate’s lo, longstanding impede where we identified the threat of executor not lawsuits will barring suing attorney-client relationship, rule non-clients from the because legal malpractice. injury for 577. S.W.2d the estate’s suit is based on to the client, any In that will to opposed the beneficiaries of a deceased as third agreement party. a trust sued the identical to one estate’s suit is legal malpractice, alleging brought during for the client could have his interests, negligent drafting that harmed their An unlike a had lifetime. estate’s join beneficiary’s, interests. Id. at 576. We to mirror those of third-party refused Belt, the majority of stаtes that relax the com- at 787.2 decedent. 192 S.W.3d Belt, mismanagement personal subject that several noted considerations could discourage representative should beneficiaries also act to removal. who personal representative (citing as an estate's at 787-88 TEX. PROB. CODE Second, 222(b)(4)). damages pursuing estate-planning malpractice any § claims recov- First, paid in order increase their own then distrib- to shares. ered would to the the estate’s estate. no reason create a argues & that win’s We see to Smith Cox in line with truly is not deprive any interest this suit rule that would an estate of always had because Corwin remedy the decedent’s that it wrongdoing caused community-property keep intended pursu- the estate from prohibiting harm it his trust and treat as out of the stock ing survivablе claims the decedent could seek- and he did so without property, own brought during have his lifetime. declaratory judgment & Smith ing the Cox that argues Smith the court argument, though, This recommended.3 appeals’ decision creates an end-run malpractice weight goes disgruntled allowing around bene- change not the fact claim does inheri- ficiaries sue to increase their in the [deceased’s] O’Donnell “stands However, the Des Cygne tances. benefi- assessing merit and shoes” claim’s ciaries’ claims were Corwin’s not to it on the deciding whether or assert will, estate as beneficiaries his but course, Of if evi- estate’s behalf. moth- against Corwin as executor of their would dence demonstrates Corwin they known er’s estate. Had ignored have Cox & Smith’s advice lifetime that had their Corwin misallocated providеd, how the mal- competently matter community property mother’s proxi- will fail for lack of practice claim alive, dissenting suit while he was as the But at in the point mate causation. this have, justices say judg- should proceedings, the merits they might ment or settlement have ob- undeveloped. claim are There is at least their damage tained mother’s estate have some evidence Corwin would Corwin, have been collectable from lawyers’ pursue followed his advice *6 then have claim who could asserted a declaratory they clearly if had judgment legal for against malpractice. Cox & Smith him so or him ade- advised to do warned In such a & and under Cox Smith’s quately consequences of the severe of mis- view, community dissenting justices’ the Barcelo characterizing assets. extinguish malpractice would Corwin’s suggests, & although And Cox Smith upon simply the claim his death because assume, justices and the dissenting Cygne Des were benefi- beneficiaries also chil- O’Donnell colluded with the ciaries of estate. We not be- Corwin’s do claims, noth- settling dren their there is expansive lieve Barcelo will bear such an in the such ing support record would contrary, To reading. negligent the when a If & can in fact presumption. Cox Smith legal depletes advice decedent’s estate trial, pre- demonstrate collusion at it would implicate a manner that does not how sumably mitigate causation negate and/or claim, apportion the decedent intended to his es- damages legal on the malpractice tate, quarreling Barcelo’s concerns about subject persоnal and could O’Donnell to liability conflicting beneficiaries for violat- beneficiaries and evidence do Corwin’s ing fiduciary his duties as executor of Cor- not arise. 923 at 578. See S.W.2d according existing plan. certainly yes. uted to the estate The answer almost The Des is present are here at These concerns Cygne received beneficiaries fixed amounts beneficiary a because O’Donnell is not of Cor- under Corwin’s will. The beneficiaries furthermore, Cygne’s, will win’s or Des against that stand to from the suit benefit estate-planning malprac- the claim not for is charity & Smith are the to which Corwin tice. intended to the bulk of his estate and leave possibly widow. Corwin’s asks, 3. The “would the client be root- dissent ing for and the beneficiaries?” the executor
423 Here, Cygne’s practice the beneficiaries and it does not involve suit dispute trust do not Corwin’s intent as against decedent’s beneficiaries the dece- expressed They already in his will. have attorneys. dent’s The Des Cygne benefi- paid been settlement out of Corwin’s ciaries did not sue Corwin’s damage allegedly estate for Corwin caused no have interest in the outcome of the trust; to their mother’s legal malpractice outcome of They case. did sue Cor- legal against O’Donnell’s suit win’s but did so in their capacity as impact Cox & will no their wronged Smith have beneficiaries of their mother’s recovery, and have interest in that allegedly trust, underfunded not as dis- suit. gruntled beneficiaries of Corwin’s will. We see no a completely separate reason to bar Adopting broad rule Cox & Smith lawsuit—that of the executor against Cor- proposes preclude executors win’s attorneys simply because Des — recovering claims estate has to Cygne’s beneficiaries sued estate pay potential legal beneficiaries due to bad mishandling Corwin’s of their mother’s advice the decedent his received trust. lifetime. For example, according to Cox dissenting justices, Smith if Cor- IV. Malice win improperly had handled co-owned O’Donnell has a cross-petition filed property based on bad advice challenging the of appeals’ holding court died, then estate his would be liable to the presented O’Donnell no evidence of co-owner for legal malprac- and could sue support malice to exemplary award of tice so as the long co-owner was not relat- 11, 1995, damages. Apr. See Act of 74th ed to and therefore a potential Corwin S., 19, 1,§ R. Leg., ch. Tex. Gen. beneficiary of his estate. If a judgment (amended (current 2003) Laws was entered coun- Corwin because version & Rem.Code personal sel in a injury botched defense Tex. PRAC. Civ. 41.003(a)). § objective Malice has both an arising action out of an acci- automobile subjective and a prong; proof of malice dent, died, and Corwin later his estate *7 objective involves an determination that could not assert a claim for the an defendant’s conduct involves ex damages that his must pay estate if the harm, subjective treme risk of and a deter injured party happened beneficiary to be a mination that the defendant had actual of his will. We see no reason to extend awareness of the extreme risk created the Barcelo bar survivable mal- conduct. Morgan Kinder N. Tex. practice executor, suits and Justiss, 427, Pipeline, L.P. v. 202 S.W.3d declined to do so in We Belt. do not read 2006, 447 (Tex.App.-Texarkana pet.). no Barcelo to bar O’Donnell’ssuit against Cox & Smith. The a objective prong is function
The dissent contends our will magnitude decision of both the and probability the disgruntled somehow allow potential beneficiaries to of injury and is not satisfied if employ gamesmanship recover more merely the defendant’s conduct a creates than were open up devised and will possibility injury. remote of serious Uni new attorney liability. 638, avenues for Ung, versal Servs. v. 904 Under Co. S.W.2d (Tex.1995). beneficiaries cannot sue a dece- 641 “Extreme is not a risk” dent’s mal- estate-planning a possibility injury high remote of or even practice. harm, Id. at 579. But does probability this case of but rather the minor nоt a plaintiff. involve claim of mal- injury likelihood of to the serious 424 Smith, Harrison, Constr., by Cox & because “some Inc. v. 70 cised
Lee Lewis
(Tex.2001).
no-
778,
carry
care” will not
the burden
a
subjec-
The
785
S.W.3d
the
summary judgment.
that the de-
But
requires evidence
evidence
prong
tive
charged with
appeals
of the risk
court
is
consider-
subjectively aware
of
fendant was
punitive
in
nothing.
ing
reviewing
to do
Lee
consciously chose
“all
evidence”
but
Keller,
Lewis,
168
City
issues.
S.W.3d
damage
S.W.3d at 786.
70
of
Moreover,
original).
(emphasis
in
817
a no-evidence sum
reviewing
summary
reviewing
we
that in
have held
in
review the evidence
mary
judgment,
malice,
judgment on
courts should consider
respondent
to the
most favorable
light
facts,
surrounding
“all of the
circum-
summary
was
judgment
against whom the
stances,
deciding
conditions”
wheth-
Wilson,
Keller v.
168
City
rendered.
of
pursued
er
with conscious
an action
(Tex.2005).
802,
respon
If the
S.W.3d
Royalty
to risk. Burk
indifference
Co.
a scintilla of
forth more than
brings
dent
(Tex.1981).
911,
Walls,
616 S.W.2d
genuine
to raise a
issue
probative evidence
appeals did not err in
court of
fact,
summary
no-evidence
of material
&
considering evidence that Cox
Smith
properly
granted.
judgment cannot
(Tex.
attempt
point
had in fact made some
510, 512
Rey
Huff,
no v.
sa
path
correctly classify
down the
Corwin
pet.).
App.-San Antonio
all
evi
ing
Considering
the stock.
that he intro
argues
O’Donnell
dence,
nothing
is
to suggest
there
that Cox
than a
of evidence on
duced more
scintilla
had
intent to harm
or
Smith
Corwin
prongs.
objective
subjective
both the
not
him
consciously
give
chose to
more
appeals
court of
agree
We
advice,
ap
thus the court
detailed
malice was
proving
strict standard
peаls
affirming
the no-evi
did
err
not met. The evidence O’Donnell offered
summary judgment on malice.
dence
prove
was an
that there
extreme risk
conclusory statements
harm amounts to
V. Conclusion
expert
from his
and Corwin’s California
reasons,
foregoing
the court of
For
raises no
Similarly,
counsel.
evidence
appeals’ judgment is affirmed.
fact
& Smith intended to
issue
cause
or acted with actual
injury
Corwin
filed dissenting
Justice WILLETT
injury.
awareness of an extreme risk
opinion, in which Justice WAINWRIGHT
classifying
recognized
Cox & Smith
joined.
informed
important,
property was
*8
GREEN
Justice HECHT
Justice
it
“presumably
Corwin that was
communi
participate
did
in the
decision.
ty,”
that more information was needed
it
Cox & Smith also
classify
properly.
WILLETT, joined by Justice
Justice
“probably”
he
advised him that
should
WAINWRIGHT, dissenting.
judgment on the classi
declaratory
seek a
turns on
legal-malpractice aрpeal
This
fication.
Barcelo2 should control.
whether Belt1 or
apart,
decisions
inap
it was
decade
both
argues
O’Donnell
that
Decided
in our
place
jurisprudence—
of
to con have their
propriate
appeals
for the court
(non-clients
general
care”
states the
rule
sider
evidence of “some
exer- Barcelo
this
Blend,
Elliott,
(Tex.
Oppenheimer,
2.
barred
by preserving
bright-line privity
rule
behalf of the estate.”3
which denies a cause of action to all
stubbornly
A
focus should
lawyer’s
attorney
beneficiaries whom the
did not
client-focused,
today’s
with
rep-
concerned
will
represent. This
ensure that attor-
clients,
resentation of sаtisfied
not tomor-
neys may in
zealously repre-
all cases
litigation from dissatisfied critics.
row’s
sent their
clients without
threat
decision,
fear,
The
I
sends this
Court’s
parties compromising
suit from third
advocatus&emdash;
troubling message:
caveat
representation.6
that
zealously
your
your
client at
represent
while
identify
own risk.
It’s hard
be zealous
In
we did not
an actual
expressed
nervous. For the
third-party
concerns
conflict of interest between the
(and
Belt),
echoed in
I would af-
attorney.
Barcelo
beneficiaries and the
Our deci-
summary judgment
firm the trial court’s
adopt bright-line
sion to
rule must there-
& Smith.
possibil-
fore be read as based on the mere
ity of conflicts of interest between the
I. Barcelo and Belt Revisited
client trustor or testator and the third-
beneficiary.
Barcelo held
trust beneficiariеs
party
privity
attorney
lacked
with the trustor’s
Belt,
hand,
other
held
inde-
malp
therefore had no claim for
of an estate
sue
pendent executors
could
reaffirmed the gen
The Court
ractice.4
injury
an
attorney’s profes
an
eral Texas rule that
alleged injury
the estate as a whole.7 The
duty
sional
of care extends
to his
in Belt was a substantial and
to the estate
client,
recognize
excep
and declined to
liability.8
avoidable estate-tax
privity
applicable
tion to the
barrier
“in
A critical
between Belt and
distinction
planning
estate
context.”5
Barcelo is that in Belt the interests
relaxing
Court’s chief rationale was that
executors,
testator,
estate, the
and the
might
rule
create conflicts of
aligned.
respected
heirs were
discourage
interest
lawsuit-
by emphasizing
solely
zeal
and reconciled Barcelo
wary
acting
*9
ously
potential
on behalf of their clients:
that the
conflicts
interest
3.Belt,
at 788.
7.
4.
6.Id. at 578-79. abound. this case has a in that case were absent interest While
concerned us Belt: slightly procedural posture-suit altered executor, attorney’s held that an by we filed not the beneficiaries
[I]n zealously a client ability represent directly-there is little confusion compromised if the would be essentially is a pass-through, executor that, death, he knew after the client’s bringing the claims in the es- children’s by the client’s second-guessed could be name. The had tate’s trust beneficiaries disappointed Accordingly, heirs. directly interests that conflicted with the owe held Denney, interests of Corwin the client. professional duty to beneficiaries The trust was established at the death of named in a or will. trust wife, Denney’s Cygne, pursu- second Des concern when applies disap- While this Every ant to her will. asset that went into pointed dispute heirs seek to the size of Cygne’s Des trust was an asset that Den- bequest their or their omission from an ney proper- could not treat separate as his plan, apply estate it does not when an ty spend or otherwise use as he personal representative estate’s seeks to holding wished. Barcelo’s central is that damages recover incurred the estate necessarily this conflict of interest means brought by quarreling itself. Cases privity that trust beneficiaries do share require beneficiaries would a court to attorneys, with the client’s who should fo- decide how the decedent intended solely cus on the best interests and client’s apportion near-impossible wishes. limited, given task and often conflict- ing, prove evidence in- available such beneficiaries, Denney’s The trust chil- involving depletion tent. cases of the dren, Denney could have sued negligent decedent’s estate due to tax failing adequately lifetime for fund Des however, planning, personal repre- Cygne’s rightful trust with her share of prove sentative need not how the dece- the couple’s community property. The estate; dent intended to distribute the so, beneficiaries declined to do almost rather, representative need surely Denney vig- aware that would have demonstrate that the decedent intended orously contested characterization of liability minimize tax for the estate as the Automation Industries stock as com- a whole. munity property and that he would have Additionally, while the interests agreement offered evidence of an oral with a potential beneficiary decedent and Cygne sepa- that all the stock was his conflict, may interests decedent’s property. rate Nor did the beneficiaries Thus, should mirror those of his estate. Denney’s attorneys Denney’s sue after the conflicts that concerned us Barce- had, they death. If have lost present lo are not in malpractice suits Instead, they under Barcelo. waited thir- brought on behalf of the estate.9 ty-four days after their father died and Privity II. The Barcelo Barrier executor, O’Donnell, sued his estate. The Should Govern this Case raised no limitations defense but instead generous settled with the beneficiaries for Today’s case should fall under the Bár- celo barrier because conflicts of sums.10 He then sued & Smith for (footnote omitted). 9. Id. at 787 ex- and citations 10. Affidavits submitted the executor’s perts assert that failed to fund Des Cygne's trust with Industries Automation
427 essentially taking position separate concerned trust malpractice, alleged- Denney’s attorneys per- should have ly was not properly funded.11 Regard- him, against strong and re- less, suaded the critical similarity with Barcelo wishes, to more assets to peated surrender is that the interests of the beneficiaries So have a Cygne’s trust. Barcelo whose claims to the malpractice led suit I draped garb. suit Belt would disallow were necessarily aligned with the in- makeover. client, terests the deceased and the mere risk of loyalties compelled The rеcord is clear that believed divided that all the Automation Industries stock bright-line us maintain a privity bar- that he separate property was his rier that precluded legal malpractice opposed funding prized the trust with this by parties. suits filed third O’Donnell, nothing asset. with to win or I apply would not read Belt to whenever by settling personally lose with the trust parties manage third to bring against suit beneficiaries, has now become a conduit the estate instead of the attorneys or the for the trust beneficiaries’ claim that Den- client directly. Again, the trust beneficia- more ney generous should have been ries here could have suit less generous trust and himself. Denney or his attorneys but declined to do Barcelo, attorneys Under should not be Barcelo, so. disappointed trust forced to answer such claims. Thе apparently pur- beneficiaries could have preempt rule should lawsuits where the litigation sued against the executor of the effectively executor a pass- serves as client’s but instead settled with the through for the beneficiaries’ claims.
estate “for they what was a contended] Bypass Every III. A Suit substantially smaller share of the estate
Bypass Trust?
than what
pursu-
have received
ant to a valid trust.”12 Bypass trusts and
Because of the conflicts of interest
in-
extremely
other trusts are
common estate
expecting
herent
to safe-
planning
couples -wishing
devices for
guard the interests of clients and bene-
minimize taxes or serve
estate plan-
other
alike,
by
ficiaries
claims
disappointed
here,
ning goals.13
happened
As
the bene-
discourage attorneys
benefiсiaries would
ficiaries to the
trust created
the will of
focusing solely
on the client’s best
spouse
may
the first
to die
interests,
have to wait
teaching
the essential
of Bar-
dies,
surviving spouse
until the
since the
special significance
celo.
I see no
surviving spouse typically
the fact that the
receives income
beneficiaries here were
death,
from the
corpus
beneficiaries to a trust
trust until
and the
was not
by Denney’s
created
will. Barcelo also of the trust then
goes to
beneficiaries.
13. See,
Henderson,
approximately
e.g.,
$1.8
stock worth
million at the
Stoll v.
285 S.W.3d
99,
death,
Dist.],
(Tex.App.-Houston
pet.
100
resulting
no
[1st
time of her
in claims
h.);
Trust,
TownleyBypass
In re
Credit
years
trust beneficiaries that O'Donnell settled
Unified
715,
(Tex.App.-Texarkana
252 S.W.3d
2008,
718-19
$12.86
later for over
million. O'Donnell also
Bolts,
Cailloux,
pet.);
no
Bаker
L.L.P.
paid
$2.3
the estate counsel who
him
advised
723,
(Tex.App.-San
224 S.W.3d
Antonio
eight
million for
months of work that includ-
2007,
denied);
pet.
Fargo
Rosen v. Wells
Bank
deposition.
ed one
Texas, N.A.,
145,
(Tex.App.
114 S.W.3d
2003,
(Kidd, J.,
pet.);
Austin
no
id. at 155-56
429
children directly
proper
stock,
The
suit
California
characterization of the
but
refused,
precipitated
legal malpractice
the Texas
he
and instead “made a decision
bar legal-mal-
suit. Barcelo endeavored to
it
...
separate
was his
property,”
practice
suits
beneficiaries with a
according to the testimony of Cox & Smith
bright-line
might
rule because conflicts
attorney Jack
Denney
Guenther.
always
questions
arise due to “concomitant
as to believed that
the Automation Industries
the true
intentions
testator.”15 Belt
stock was
separate
property, as he
distinguished
disappointed
1940s,
cases “when
started the company in the
long
dispute
heirs seek to
the size of their
before he married
Cygne. Through-
Des
bequest,”16
attorneys
and
are
where
out his
through
Cygne’s
Des
lifetime —
death,
being “second-guessed by
divorces,
the client’s dis-
three
and a stock sale
heirs,”17
appointed
the situation here.
while married to his fifth
Denney
wife—
insisted the stock was his alone. O’Don-
Denney
& Smith advised
regarding
nell’s testimony confirms Denney’s consis-
Cygne’s
filing.
trust and her estate-tax
position
he,
tent
for thirty years was “that
In the
of
course
this advice
Cox &
wives,
not
of his
owned all the Auto-
Smith
Denney
advised
that the
mation Industries stock.”
Automation
might,
Industries
stock
de-
pending
bottom,
questions,
choice-of-law
At
the legal-malpractice claim is
community property despite
deemed
Den-
that Cox & Smith
persuaded
should have
ney’s
representation
written
to the attor- Denney to do something he believed was
neys
“DesCygne
and I had a firm wrong and did not want to do. Denney’s
that she
understanding
lawyers
suit,
had no interest in
subject
should not be
to
dec-
my stock
[Automation
ades after their representation,
Industries].”
for imple-
Cox & Smith recommended that Denney menting their
express
client’s
wishes to
declaratory
seek a
judgment regarding
man,
live out his life аs a wealthier
based
you
thought
getting
... I know
abhor the
job....
decision,
At the time Deci made her
I ex-
violently opposed Mary marrying
plained
I was
to
going
to her that she was not
however,
inherit,
Gary;
gave
I
except
very
way,
them the best of
in a
nominal
weddings
Mary,
in Tulsa.
was no better
her mother or me....
you,
DesCygne....
than
in her hatred of
Finally,
you
I would like for
and the others
know,
my
upon my
...
Anne is the
one of
children
death the vast ma-
jority my
go
who has ever
me....
assets will
to the
visited
Pete,
regard
Tommy
Foundation.
With
[sons]
Nanci,
Denney’s
deposition,
last wife
in a
problems
of them
both
were terrible
for the
"horrible,
Denney's
summarized the
years
suit that
following DesCygne's
several
death.
odious, unattractive, disagreeable”
problems
children
These
involved rebellion
standards,
brought against
"They
the estate as follows:
consumptiоn
drugs,
all moral
called him a liar and a
and a
job, scrapes
inabilities
fraud
cheat.
to hold a
law,
why they really
And I never
did
squandering money....
understood
it.
they just
get
money
I think
wanted to
more
Deci,
regard
than he had left them.”
[daughter]
you
With
as
know,
extremely poor
she has achieved an
on a then-defensible BP PRODUCTION COMPA AMERICA and did separate property indeed his NY, Company, Richfield Atlantic Cygne’s trust. belong in Des *13 Resources, Inc., Appellants, v. in this Vastar lawyers to tell rule serves Denney, fight for
situation to
him, gets keep that he try to assure and Jr., Ray Stanley Robert G. MARSHALL
his stock. Marshall, Irene Marshall Catherine a conflict between presents This case Hashmi, Mar I.M. and Catherine f/k/a beneficiary (Denney and client and trust Margaret garet Ann Marshall f/k/a children) presump- requires and also his Jeffus, by through David Jef A.M. evidence, Den- tion, against all record fus, Independent Executor of the as his estate’s decision ney would cheer Marshall, Appel Margaret Estate of (who wanted the the children settle with lees. gave to chari- Denney instead millions that having then & Smith ty) and sue Cox in the facts carried out his wishes. Unlike client living Co., benefits the Ltd., Vaquillas what most Vaquillas Ranch (treating the Minerals, Ltd., advice Unproven Vaquil
who received and what the separate property) Minerals, Ltd., Appellants, stоck as las Proven best thought was in estate’s executor millions to settle claims (paying interest community property) the stock Company Wagner Wagner Oil Duer f/k/a conflicting, misa- contradictory.
are These Co., Limited, Jacque Oil & Gas present were not Belt. ligned interests Jr., III, Wagner, Wagner Duer Duer Finley,
Bryan Wagner, James D. C. IV. Conclusion Corkran, Andrews, Dennis D. David J. Patterson, Talbot, H.E. Brent Scott facts, indulge we cannot Belt- On these Shellum, Briggs, Gysle Appel R. Denney’s interests presumptions like lees. estate,”18 of his living while “mirror those compatible “are that the estate’s interests No. 04-06-00478-CV. interests,”19 that Den- client’s or Texas, his executor “stand- ney Appeals would want to see Court of by suing shoes”20 San Antonio. ing Denney praised. O’Donnell is whose work 10, Dec. 2008. shoes, Denney’s but trying squeeze into uncomfortable, and the quite the fit is Rehearing April Overruled 2009. not allow it. Court should ("the estate 'stands in the 20.See id. at 787
18. Id. decedent”); (noting of a id. 788-89 shoes' "merely in the shoes' of the that estate ‘stands at 789. death”). client after