*1 child, respect youngest to his it was not respect
valid with to his older children.
Specifically, right he asserts his not to be support
liable for for his older children legislature
vested before the created the
аdministrative writ. The divorce decree in support case did not order per on a Rather,
child basis. it provided for a flat
monthly payment Redding’s until youngest eighteen. Therefore,
child reached Red-
ding cannot show support amount of children, reserved his older jurisdiction
the trial had court to enforce
all arrearages See parte owed. Ex
Beaupre, 231 (Tex.App.—
Fort orig. proceeding). Worth legislature
Because the created the ad- writ
ministrative with no associated time
limit claim arrearages against before barred,
Redding Redding became time had right subject vested not to be to an Consequently,
administrative writ.
trial in dissolving court erred the adminis-
trative writ. We reverse the trial court’s
order and order the writ reinstated.
TWO THIRTY NINE JOINT
VENTURE, Appellant,
Harry JOE, Individually, J. and Jenk Gilchrist,
ens & A Professional
Corporation, Appellees.
No. 05-98-01775-CV. Texas, Appeals
Court of
Dallas.
Nov. *4 summary judgment im- based Joe’s
munity, produced whether JV had evi- support each dence element of a mal- practice claim, grounds. and other trial granted court J <&G’s motion. points error, challenges three (1) summary judgments, asserting trial court failing abused its discretion in grant motion continuance when that motion was filed and heard within Godwin, Patterson, Donald E. David (2) filing; three months of the suit’s Mouse, Godwin, Boyd Gruber, A. &White improper was because P.C., Dallas, for Appellant. fact issues exist as Joe’s official immuni- (3) ty; J G’s Monning < n III, B. Monning, Prater erroneously granted. Because we Wynne, L.L.P., Dallas, P. Lynn, Michael conclude that the trial court abused *5 Cox, Lynn Stodghill John T. Melsheimer & failing grant discretion a for motion Dallas, Tillotson, L.L.P., Appellee. for summary continuance on for Joe’s motion
judgment, we reverse and remand the against of cause action Joe. Because we FITZGERALD, Before Justices attorney’s duty conclude that an of care RICHTER, and ROSENBERG.1 of includes disclosure conflict of inter- may attorney’s repre- est that affect the OPINION of sentation that client’s interest and that legislative immunity neither nor official ROSENBERG, BARBARA Justice protects attorney private from that (Assigned). duty, we reverse and remand the summary of J & favor G. (239 JV) Thirty Two Nine Joint Venture brought suit for malpractice and breach of FACTUAL AND PROCEDURAL fiduciary duty duty of loyalty against BACKGROUND Joe, Harry individually, J. and his law 1992, Beginning attorneys rep- J & G (J firm, G). Gilchrist, Jenkens P.C. & in its formation resented JV and busi- The basis the suit of was that Joe and J & acquiring, ness activities developing, loyalty G breached their to 239 JV Ranch, selling Valley 239 acres located in a when neither Joe nor the firm law dis- master-planned community located in Irv- Joe, closed that as a member the Irving 1994, ing, By August Texas. had JV Council, City positions would or could take sold all but an apartment eleven-acre tract. that would affect the real estate transac- 18, 1994, On August 239 JV entered into a tions in represented which J & G 239 JV. acreage. contract for the of that sale The summary judgment Joe filed a motion for Thau, contract was a reviewed William immunity, on based official which the trial shareholder, provided legal J & G and he Then, granted. court J & a G filed motion advice to 239 on the sale of this acre- JV Dallas, Rosenberg, sitting assignment. 1. The Honorable Barbara Former at Texas Justice, Appeals, Court of District Fifth On extend the moratorium. peri- voted twice to provided a review age. contract 22, 1995, requested a 17,1994. when June ending September od moratorium, Joe abstained waiver of the 1994, Sunday be- September On from the council vote. City Day, Irving Labor Council fore filed suit April JV special On posted three-day notice a May and J & G. On against consid- meeting at which the council would 12, 1997, Joe they June morato- answered. On place that would er an ordinance summary judgment Sep- filed his motion for apartment development. On rium on immunity. 239 filed a motion special meeting, council based tember for time obtain discov- Joe, City for of the Council continuance a member G, ery of the purposes in J motion for partner and a & made the moratorium, motion trial court denied the council issues. The adopt and the motion unanimously. granted for passed the On or continuance ordinance date, judgment. about same because Irving’s building on the moratorium discovery, & G filed motion After J rejected apartments, purchasers independent summary judgment on six apart- contract for sale of the eleven-acre trial & G’s grounds. granted court J ment tract. This stating grounds. without motion appeal learning followed.
After that Joe was member G, J 239 met with Joe. & members of CONTINUANCE THE MOTION FOR of J
Joe was told & G’s *6 sale, error, it prop- point 239 for In 239 JVs first apartment the trial court abused its erty. urged complains 239 JV members Joe to that and, venture, 239 first motion support denying if discretion in JVs the interests not, judg they summary for he could asked him to declare a continuance Joe’s discovery responds that no is conflict of interest and withdraw from ment. Joe role, immu leadership discussion, necessary determine the official further or vote motion nity on that the basis of his Subsequently, the moratorium. on De- defense is 18, 15, 1995, judgment.2 May summary 1994 for cember and Joe supporting pоrtion 2. and his affidavit do Joe claims another of his brief Joe’s motion legislative encompassed his allege performing policy- that motion also that Joe was a not immunity. Legislative immunity protects making is for function. No distinction made functionally legisla- those duties that are necessary prove legislative elements 752, Clipp, v. 920 758 tive. Bowles S.W.2d USA,Inc., immunity. Bartlett v. Cinemark See 1996, denied). (Tex.App. leg-A writ 229, —Dallas (Tex.App. 908 S.W.2d 234-35 —Dallas act, establishing policy, a or law islative act 1995, writ) (adopting "legislative facts" no legislative immunity, protected while under impact” "particularity of tests for deter- and nonlegislative enforcing a act of or adminis- immunity). legislative mining entitlement act, tering policy, or law is not. Id. Joe that Therefore, specificity of because of the pleaded that immunity pleading and the lack of official Harry on the The Affidavit of Joe establishes legislative immunity, pleaded we elements of question performing occasions in he leg- Joe's motion did not assert conclude that discretionary Irving City duties Coun- his as immunity ground a for islative as Tem, good Mayor cilperson and Pro 166a(c) (provid- judgment. Civ. P. See TexR. faith, authority acting and was within his summary judgment "shall ing motion Mayor City Councilperson and Tem. Pro therefor”); grounds specific McCon- state the therefore, is, from suit. immune Dist., Indep. v. Southside Sch. nell immunity legislative Official includes both 337, (Tex.1993) (holding summary 2 339 & n. an and administrative duties of officeholder. 902 a party denying contends that
When continuances when have cases three, Levinthal, not an adequate opportunity has had for been on file for 902 Verkin, 510, six, at discovery a S.W.2d 784 before S.W.2d 94-95, months, hearing, Laughlin, eleven 962 it must file an either affidavit 66, diligence S.W.2d at when ma- due explaining the discovery need for further teriality discovery are established. or a verified motion for Ten continuance. Co., Inc. neco v. Enter. 925 Prods. S.W.2d diligence, To establish due 239 JV’s 640, (Tex.1996); see Tex. P. counsel filed motion for continuance with Rs. Civ. 166a(g), 251, 252. It is within a trial stating an affidavit he had not had court’s grant discretion to continuance adequate opportunity discovery before for discovery until the requested completed. summary judgment heаring. The mo- Clinic, P.A., Kelsey-Seybold Levinthal v. tion stated that needed counsel additional time discovery to conduct regarding — Houston writ). [1st Dist.] We will whether Joe acted as a councilman and J disturb trial court’s denial of a motion & G’s In JV. affidavit, for except that, continuance clear abuse lead counsel stated while Carter, months, Villegas the suit discretion. v. had been on file two lead (Tex.1986); counsel was in an from out-of-town trial Verkin Southwest (Tex. One, Ltd., the time of until Joe’s answer the suit Ctr. summary judg- June 10. motion for App. [1st Dist.] writ de — Houston nied). ment was served June 12 and was set for ' July Correspondence between 239 deciding whether the trial court appellees’ JVs counsel counsel shows abused its discretion in denying a rule on attempt- June counsel JV’s 166a(g) continuance, motion consid we However, to depose ed Joe and others. er the length of time the case had been refused, appellees’ counsel stating, “[W]e file, materiality discovery you take position will are entitled sought, party seeking whether the the con discovery to no until after the Court has *7 tinuance diligence had exercised due in Thus, immunity.” determined the issue of attempting obtain discovery sought, to attempts testimony counsel’s procure to expects what party prove. and to filing within months suit three of showed 64, Laughlin Bergman, v. 65-66 962 S.W.2d diligence attempting to dis- due obtain ( 1997, Tex.App. [1st Dist.] — Houston covery. See at 66. id. denied); pet. Sign Royal MeAx Co. v. diligence only part Because is due Coach, Inc., 368, (Tex.Civ. 547 S.W.2d 370 test, must testimony counsel show that the 1977, writ); App. no see Tex.R. — Dallas immunity is relevant Offi to defense. P. 252. Civ. immunity only persons cial from shields 1997; April 18, 239 its petition JV filed complaining suits of official acts. Bonham May 12; Joe J & G filed answers on (Tex. Flach, 690, v. 692-93 filed summary judg- Joe his motion for writ); 1988, Bagg no App. Antonio v. — San 12; on Galveston, ment June and the trial court Tex. Med. Branch at Univ. of Thus, granted July Joe’s motion on 11. 586 — Houston n.r.e.). the suit had on file months been three writ In its [14th Dist.] refd continuance, granted. questioned before was motion for 239 JV Trial courts have abused their discretion whether all Joe’s actions were as a council summary judgment). expressly must is motion state reasons movant entitled
903 granting in not its discretion faith, in he had court abused good and in member diligence due because over to the continuance and turned it done research 239 was denied acting JV advocacy and was as demonstrated group, an could be of its claims city discovery in conflict with 239 when some counsel for the in his individual against These issues could contro- Joe JV’s interest. maintained point all actions first allegations that 239 JVs capacity. vert Joe’s We sustain performed Further, his dis- dis- advocacy were because evidence of error. Council cretionary may duties as an raise during the continuance covered member, faith, his au- and within and his good on acts fact Joe’s individual issues thority defense, as council member. immunity the trial governmental summary judg- improperly granted court however, Joe, Mayhew argues that immuni- grounds ment in Joe’s favor Sunnyvale, v. Town S.W.2d grant a continuance. ty refusing after denied), man (Tex.App.—Dallas writ not the merits Because we need address depositions proper. dates that no are summary judgment, we motion for legisla judicial Mayhew involved review point second need not address JV’s legis This held that individual tion. Court error. may questioned not be determine lators they upon which relied or evidence SUMMARY J FOR & G’S MOTION Id. particular their reasons for vote. JUDGMENT authority Unlike cited validity error, chal- dispute that involve a point about In its third id.; actions, legality city council see & G’s lenges granting the trial court’s of J Christi, City Corpus Sosa v. tradi- summary judgment. The motion for (Tex.App.—Corpus 404-05 Christi six motion raised tional and no-evidence 1987, writ), questions this suit Joe’s acts summary judgment: J & grounds for G lawyer. brings When a claimant is im- held hable because Joe cannot be against an in an individ action officeholder suit; from Local Government mune discovery, depo ual capacity, including the pro- relating to conflict interest Code officeholder, appropriate. sition of the remedy; J G vides 239 JVs exclusive Sims, See State influence did owe its clients a (Tex.App.—Amarillo orig. proceed servant; actions as a or control Joe’s Here, ing). trying 239 JV not to deter- cause; proximate cannot establish restriction; zoning the reasons for the mine or claim for waived conflict rather, attempting it is to determine all *8 has not sustained malpractice; and 239 JV concerning acts the mora- Joe’s individual argues that J & G owed damages. 239 JV such he Any torium. acts took fiduciary duty loyalty and protected would not capacity individual be sta- not affected Joe’s duties that were Bagg, 726 immunity. See governmental city 239 JV also tus as a council member. Therefore, at 586-87. the discov- S.W.2d prove that G these J & failed contends ery was relevant the issues requested genu- and that grounds as matter law case. involved exist. ine of material fact issues Denial of a continuance is abuse of Review Standard party prohibits when it of discretion proper is discovery Summary judgment meaningful and engaging from there is that Laugh when the movant establishes plaintiffs case. See forecloses the and he is lin, of material fact Therefore, genuine the trial no issue at 66. 962 S.W.2d 904 to judgment
entitled as a matter of law. In reviewing the grant of sum 166a(c); mary Tex.R. Civ. P. see judgment pursuant Houston to either rule 166a(c) Auth., (i), v. Clear Creek Basin we view the 589 S.W.2d evidence (Tex.1979). 671, light most question 678 on favorable the nonmovant ap- every peal make reasonable inference and is not re summary judgment whether the all in favor solve doubts of the proof nonmovant. raises a fact with issue reference to Co., Prop. Nixon Mgmt. See v. Mr. 690 the essential plaintiffs elements 546, (Tex.1985); S.W.2d 548-49 Gen. Mills action, summary causes but whether the Rests., Inc., 12 (citing S.W.3d at 833 Mer judgment proof establishes that mov- Pharm., Havner, rell Dow Inc. v. 953 summary ant is entitled to judgment as a 706, (Tex.1997)). 711 S.W.2d matter of law. Gonzalez v. Mission Am. Co., (Tex.1990). 734,
Ins. 795 S.W.2d 736 Fiduciary Duty The Breach of A summary defendant is entitled to judg- Loyalty Claim ment disproves, when he as a matter law, one of the essential of each elements alleged Joe and J & plaintiffs causes of action. Lear fiduciary G breached their duties and Perez, 470, Siegler, Inc. v.. 819 S.W.2d loyalty duties of to 239 JV when Joe did (Tex.1991). not disclose with his conflict interest on impending
JV the vote on the moratori summary A judg no-evidence um as well his actual vote and ment asserts that there is no of participation evidence in moratorium activities. J & one or more essential elements of claims G asserted in its motion for upon opposing party which the G would have J & had no concern proof ing burden at trial. actions because he was a P. Tex.R. Civ. 166a(i). proximate A official and there neither no-evidence nor permissible cause J essentially damages. <&G pretrial directed verdict to argues also violation of Texas apply which legal sufficiency we the same Disciplinary Rule Professional Conduct Rests., standard of review. Gen. Mills cannot be support liability. used to civil Inc., 827, Inc. Tex. Wings, 12 S.W.3d (Tex.App 832-33 pet.); no . —Dallas Liability Civil Mart, Inc., Jackson v. Fiesta 979 S.W.2d (Tex.App. pet.). — Austin The elements of a mal Although nonmoving party not re (1) (2) practice duty, claim are a breach of quired proof, pres marshal its it must (3) proximately duty, the breach caused ent genuine evidence that raises a fact (4) injury, resulting damages. challenged issue elements. Luce, v. Hughes Peeler Ctr., McCombs v. Children’s Med. 1993), aff'd, 827-28 — Dallas (Tex.App (Tex.1995); see Onwuteaka v. . —Texarkana denied) 1999, pet. (citing Tex.R. Civ. P. Gill, (TexApp.— 281-82 *9 cmt.). A judg writ). 166a no-evidence summary 1995, Dist.] Houston A [1st law properly ment if granted is the nonmovant yer in Texas is held to the standard of care bring fails than a of to forth more scintilla by reasonably that would be exercised a probative genuine Grimes, evidence to raise a issue prudent attorney. Cosgrove v. (Tex.1989) of fact the challenged 662, material as to ele 664 (op. on 166a(i); Elliott, the ment of claims. Tex.R. Civ. P. see v. reh’g); Barcelo Jackson, (Tex.1996). 575, Additionally, 979 at 70-71. 577 attor
905
1102,
Standard,
fiduciary
with
neys
relationship
a
have
L.Rev.
Harv.
Wolfram,
(1996)
(citing Charles W.
law.
as a matter of
Gen.
their clients
as a
Crenshaw,
Responsibility
Corp.
Code
Acceptance
Motors
of Professional
in Civil
L.L.P.,
Attorney Liability
Milam,
Measure
Dupree
&
of
(1979)).
denied)
281, 294
Litigation, 30 S.C.
pet.
Paso
L.Rev.
— El
conduct
120-21,
codes of
Lee,
Lawyers have established
(citing Cooper v.
Tex.
that no
(1889)).
consensus
professional
reflect a
to
12 S.W.
Id.; see Tex.
fall
attorney
below.
shall
Here,
expert
239 JV and
Disciplinary
preamble
R. PROf’l Conduct
Disciplinary Rules of Pro
used the Texas
¶
deny-
and
the use of the code
Barring
to
the stan
fessional Conduct
demonstrate
is
to the duties a
ing that the code
relevant
attorney
of an
to
dard of care and duties
logical
and
lawyer
to his client
not
has
keep
the
in
avoid conflicts
client
standard
require the re-creation of a
would
preamble of
Disciplinary
formed. The
the
to verifiable or
of care without reference
Rules
that
the
are not
to
states
rules
Note,
of
su-
pre-existing rules
conduct.
liability. Tex.
define the standards of civil
Therefore, the trier of fact
pra, at 1119.
DisciplinaRY
preamble
R. Prof’l Conduct
relevant
the construction of a
may consider
¶ 15,
tit.
reprinted in
Ann.,
Tex.
Gov't Code
is de-
professional
of
conduct
rule
(Vernon
1998)
app.
G
subtit.
(Tex.
A
persons in
protection
for the
of
the
signed
9) (“Violation
X, §
Bar R. art.
of a
State
claimant as
position of the
evidence
give
to
of
private
rule does not
rise
a
cause
the
care and breach of
stan-
standard of
presumption
it
action nor does
create
dard.
(Third)
the Law
Restatement
of
a
legal duty
that a
to
client has been
Lawyers
(f).
Governing
§
cmt.
breached.”). However,
preamble
the
does
Notwithstanding
disciplin
comment on and
not inconsistent
rules,
attorney’s duty of care in
ary
use of the rules
evidence of a
an
as
care,
duty
conflicts of inter
existing duty
of an
of
cludes
avoid
violation
(Third)
attorney’s ability
may impair
provided for
the Restatement
of
est
judg
Lawyers.
independent professional
Governing
See Restate
to exercise
Law
Governing
16(3);
§
of the client. Id.
ment
behalf
(Third)
ment
of the Law
Law
yers
Geoffrey
52(2)
(2000).
&
§
&
Jr. W. William
Hazard,
cmt.
Section
C.
(f)
(2001).
Lawyering
52(2)
§
4.4
regu
that a rule
Hodes,
provides
or statute
The Law
lawyers
duty
conflicts of interest
lating
give
the conduct of
does not
And
avoid
duty
key
fiduciary
implied
pro
aspect
rise
cause of action
is a
to an
generally.
his client
negligence
fiduciary
attorney
or
an
owes to
fessional
breach
duty,
may
a trier of Restatement
but
be considered
(Third) of the Law GoveRN
16(3).
ing Lawyers
lawyer
§
con
understanding
applying the
When
fact in
possibility
malpractice or
tinues
with the
standard of cаre for
deter
properly
obtaining
a conflict without
fiduciary duty.
Id.
mining a breach
client,
52(2).
consent from
affected
provision
§
This
reflects a com
informed
loyalty.
is a
approach
using
the rules of
there
breach
mon-sense
§
Because
supra,
4.4.
Hodes,
fidu Hazard
malpractice
conduct in
breach of
thereby
avoiding
in a
of interest and
ciary duty action. A
of care
conflicts
standard
fiduciary duty
loyalty is
observing
negligence suit does
professional
Note,
reasonably prudent lawyer
action that
reflect work custom.
should
client,
in relation
Evidentiary
Codes in would observe
Use
Ethics
*10
civilly
if
hable to a client
the
lawyer
a
can be
Legal Malpractice: Erasing
Double
lawyer
fiduciary
a
a
duty
Duty
breaches
to client
Attorney Public
of
Official
avoiding
not
impermissible conflicts of
determining
The issue in
whether
interest, and
the breach is a
cause of
duty
a
exists in this case is whether the
injury. Restatement
(ThiRd)
of the Law duty to avoid conflicts with a client in
Lawyers
16(3),49;
§§
1 Hazard
Goveenino
attorney’s public
cludes an
service as a
4.4;
Burrow,
swpra, §
Hodes,
see Arce v.
&
government official.3 Most situations in
(Tex.App.
958 S.W.2d
245-46
—Hous
volving a conflict of interest involve situa
1997)
ton
(describing
[14th Dist.]
attor
attorney-legislator
tions where an
votes or
client),
ney’s fiduciary
part
in
duty to
aff'd
positions
advocates
that are favorable to
part
in
rev’d
on other grounds, 997 the client’s interest. The issue addressed
(Tex.1999).
public
here is
promoting
whether
the
offi
public
cial’s
agenda conflicts with the
Finally, the liability would
extend
interest,
attorney
client’s
to whom an
owes
firm and
of
firm
member
that
continuing duty
a
of loyalty, independent
in
engaged
prohibited
conduct. See
any duty
public
of
as a
official. According
Fountain,
Brundidge,
Cook v.
Elliott &
(Third)
to the Restatement
of the Law
Churchill,
(Tex.1976)
Governing
reported
Lawyers, most
deci
extent
(noting
partner’s authority
do
prohibit
legislative
sions
not
most
activ
essentially by
prin
“determined
the same
ity
might
private
favor
except
clients
ciples
measuring
those
scope
prohibited by
where
law. See Restate
authority
agent”);
Metroplex Glass
Governing
(Third)
ment
Law
Law
Ctr.,
Inc.,
Inc. v. Vantage Props.,
yers
f(i)
§
reporter’s note cmt.
(citing,
— Dallas
e.g., Norton
Hosp.,
v. Tallahassee Mem’l
n.r.e.) (noting
writ ref 'd
it is well settled
(11th Cir.1982)).
yer’s relationship entity if property with the or the the client or action on involved, entity clients matter of the business will have special economic effect on the is entity (cid:127) being performed the functions by the distinguishable from the effect on pub- the lawyer, lic, reasonably or it is an foreseeable that (cid:127) the likelihood that actual conflict will action on property the matter of the real arise, and will special have a economic effect on (cid:127) the likely prejudice to the client from property distinguishable value of the from the conflict if it does arise. public. its effect on the Tex. Loc. Gov’t Further, 1.13(a) Id. Disciplinary pro- Rule (2) (Vernon 171.004(a)(1), § Code Ann. vides: (cid:127) 1999). provision This addresses situations A lawyer director, as a serving officer public personal which a official’s interest civic, legal services, or member of a public conflicts with But it interest. organization, charitable or law reform public does not address when a official’s apart from firm in the law which the position conflicts with his client’s interest. lawyer practices, shall not knowingly While the statute further states that the participate in a or action decision of the chapter preempts on conflicts the common organization ... if participating in the law of applied conflicts of interest as to decision lawyer’s would violate obli- (Vernon officials, public § locаl id. 171.007 gations to a client under Rule 1.06[.] 1999), chapter only the context deals DisciplinaRY R. Prof’l Tex. public with the ability of local officialto Conduct 1.13(a).6 Although disciplinary the Texas vote on an validity issue and the of the specifically rules do not lawyer’s Here, discuss a validity vote. of Joe’s moratori- conflicts positions might questioned. be taken um vote is not No conflict office, when holding public public of with the being litigated. interest loyalty prevention conflicts preempt be- statute does not all other tween a lawyer’s personal pri- or civic duties a public may interest official have as a Therefore, and the client recognized interests of a are vate citizen. had whether Joe duties.7 a conflict of interest with 239 is not Accordingly, determined by the statute. Alternatively, J & G contends we summary judgment review the evi- conflict of concerning interest Joe’s activi- dence determine whether it a fact raises city ties as a council member would be issue on an attorney’s duty breach of governed by the exclusively Local Govern- avoid conflicts of interest with a client. 171.004(a) ment Code. Section of the code provides public that a official who has a JWs evidence substantial entity interest in business J & demonstrates that G’s property participate joint real shall a vote venture the sale of argues zoning 6. J & G organization. that comment 3 reform See id. demonstrates Joe's lawyer that a conflicting part legal to have activities reform allowed were not and, therefore, organization, views with those of his client because a the comment is law- yer's representation irrelevant to the in this case. client does not issues con- stitute an political, endorsement client’s social, fact, or economic views. See Tex. agrees the dissent that a Disciplin- 1.13, However, R. official/attorney loy- cmt. 3. a continuing duty has ary Prof'l Conduct generalization ally regards the comment is a to the clients in matters of attorney’s representation. relates to a member of a activities of injury proximate cause of being proрerty began continued claim, party malpractice G’s In a through as reflected in J & the client. June billing purpose of & G’s and foresee prove records. The J both cause-in-fact must *13 assis provide legal was to cause. Hall v. ability proximate to show (Tex. selling property apartment the tance 465-66 Stephenson, 919 S.W.2d However, denied) is development. (cit there evidence writ App. Worth — Fort that, representation, orga during Allbritton, this v. 898 Pump Co. ing Union nized, advocated, against apart and voted (Tex.1995)). 773, 775 Cause-in-fact S.W.2d that, effect, actively development ment act or omission that the defendant’s means of its stopped apartment 289 JV’s sale bringing factor in about a substantial was made property. attempt to deter No was have injury would not otherwise the that affect position mine whether would v. occurred. Prudential Ins. Co. Jefferson Expert testimony firm. was clients of the (Tex. Ltd., 161 Assocs. 896 S.W.2d the presented that the nondisclosure of 1995). Foreseeability ac means the of the standard of conflict was breach injury to anticipated oth tor should have Decker, Jones, v. McMac care. See Jatoi City Mesquite, v. 830 ers. Travis of Bates, kin, 430, 433 Hall & (Tex.1992) (op. reh’g).. on 98 denied) 1997, pet. Worth (Tex.App. — Fort require not the Foreseeability does required (noting expert testimony to es precise consequences anticipate the actor compliance attorney’s stan tablish his actions. Id. Rutherford, citing dard care and Hall no dispute Because there is about fore- 422, 424 (Tex.App.—San ton An seeability, we need consider whether denied)). This io writ is about cause-in-fact. there evidence a fact on judgment evidence raises issue argues that because the council’s J & G being performed by whether the functions was unani- causing the moratorium vote law firm would and be the conflict with mous, the Joe’s actions were not cause prejudiced by activity. Contrary canceled contract for the sale the the claim that there was no con dissent’s apartment property, and the moratorium represent flict J & G not because did development apartment would have oc- city zoning bеfore the council on mat However, present- anyway. curred ters, we conclude evidence raises a fact if it had informed of ed evidence that been issue on whether Joe’s activities on behalf support conflict caused in prejudiced of the moratorium JV’s moratorium, plat it could have filed regards particular matter terests in to the apartment tract from JV, “grand-fathered” represented on which & J G The sale effects of moratorium. apartment devel property sale completed. deposi- In a have been prejudice could opment, and whether this tion, Hewitt, representative, a 239 Art duty to firm’s breach of client. See DisciplináRY 1.06, part- told his stated Joe should have R. PROf’l Conduct Tex. Thus, JV’s that the handling to ners business cmt. 13. evidence sufficient coming sup- he was concerning up, of the moratorium was raise fact issue breach it, fiduciary be informed porting of care and breach of and clients should standard duty loyalty. appropriate action. Ac- duty and let them take Hewitt, development cording another
Proximate Cause exemption to obtain from project was able There also evidence the moratorium. Breach of standard represen- and & G told 239 JV care is sufficient without the breach that Joe J tatives that the firm help omissions, would in obtain- damages by appel suffered ing a waiver from the moratorium after lants would be economic. The measure vote, September allowing 239 JV damages in a commercial relations tort pursue Thus, other sales. there is evi- may “economic,” be although they are raising dence a fact issue that failure to damages for the tort. Am. Nat’l Petrole disclose the conflict between Joe’s advoca- um Co. v. Pipe Transcon. Gas Corp., Line cy and the client’s economic interest —not (Tex.1990)(measure the moratorium itself—caused economic actual damages for tortious interference harm to 239 JV. with contract same as measure of damages *14 with). for breach of the contract interfered contrary
This is to the dissent’s asser- case, In this malpractice 239 JV seeks tion that the outcome was inevitable be- position restoration to the in which it cause of the city unanimous council vote. would have been had the sale been com “Whether 239 JV could have known of the pleted. Generally, party a to all entitled special meeting agenda and the would not damages actual necessary put it in the reheve J & of any by G conflict caused its same position economic in which it would attorneys’ anti-apartment involvement in have been had the contract been fulfilled. development pro-moratorium activities id.; See Abraxas Corp. Petroleum v. to the detriment of the sale of 239 JVs 741, Hornburg, 20 (Tex.App.— S.W.3d 760 property. prejudiced his firm’s 2000, El pet.). Paso no Damages protect clients’ by interests failing to inform the interest, three firm of interests: restitution the conflict between the client’s interest, reliance expectation interest and his and an support for the inter moratori- Gonzalez, um “in est. O’Farrill Avila v. 974 preju- interest.” That 237, (Tex.App. dice S.W.2d 247 could have been Antonio avoided. This evi- — San 1998, denied) pet. (op. dence is reh’g). party’s sufficient to raise a fact on A issue on expectation cause-in-fact. by interest is measured anticipated receipts by and losses caused Damages the breach less cost or other loss he has by avoided not having perform. The law requires necessary Inc., showing Lafarge Corp. Wolff, of a causal relation 977 between the S.W.2d 181, complained 1998, act 187 (Tex.App. pet. injury and the de sustained. — Austin nied) Co., (citing See Brown v. Edwards 764 (Second) Restatement Con Transfer 220, (Tex.1988). (1981)); § S.W.2d 223-24 347 Generally, Coon v. Schoene tracts man, proper 439, measure of damages (Tex.Civ.App.— in a S.W.2d n.r.e.). malpractice case is that amount of dam Dallas writ refd To restore ages that injured would have been an party position collectible but to the in which wrongful act or omission of the he would have been had the contract been attorney. Johnson, Gibson v. performed, S.W.2d it must be determined what (Tex. Civ.App. Tyler 238-39 injured additions to party’s wealth — n.r.e.). writ refd Because this in prevented case have been by the breach and volves the failurе of a sales transaction as what subtractions from his wealth have a result of alleged wrongful Interceramic, acts by been caused it.8 See Inc. parties Corp. 8. The cite damages Formosa Plastics speculative. USA 239 JV’s are 239 JV Contractors, Inc., Engineers v. Presidio supports theory contends that Formosa (Tex.1998) (op. reh’g). S.W.2d 41 profits J & G that the foreseeable from other busi- supports claims the case may its contention that nesses be a loss as result of a tort.
9H
Co.,
is a
The firm claims this
apparent.
R.R.
927-28 was
v. S. Orient
S.W.2d
(
Tex.App.
pet.
at least a waiver
de waiver of the conflict or
— Texarkana
187;
nied);
Lafarge Corp., 977
against
an
the firm.
action
Locke,
Serv. v.
Express
Mistletoe
First,
a conflict of inter
waiver of
— Texarkana
a client’s consent before
requires
est
writ).
1988, no
conflicting position or
attorney takes
presented
through
evidence
Here,
client.
there
represents the adverse
expert
the loss
the sale cost
no consent
notice
$119,770 in
carrying costs and
advocacy or votes for
prior to Joe’s
proceeds
investing
reasonable value
Thus,
continued
moratorium.
239 JVs
have
produced
from the sale would
rate
by J
is no evidence
& G
return calculated
rates of return
conflict.
consent to the
average
on an
investment or another 239
total
opportunity.
investment
esti-
Next, for
239 JV have waived
$1,442,157
damages
mated
were between
*15
G,
J
against
its
&
action
$1,939,590.
had
judgment evidence must show 239 JV
review,
To
no
withstand
evidence
(1)
benefit,
right,
advantage;
or
existing
minimum, opinions
“[a]t
estimates
(2)
knowledge
constructive
of its
actual or
objective
profits
lost
must be based on
(3)
existence;
intent
an actual
to relin
facts, figures,
[and][r]eeovery
or data ...
(which
quish
right
can be inferred
profits
predicated
of lost
must be
on one
conduct).
Rapid
from
Area
Transit
Dallas
complete
Szczepanik
calculation.” See
v.
News,
Morning
v
. Dallas
Co.,
648,
First S. Trust
S.W.2d
1999, no
475-76
— Dallas
(Tex.1994)
curiam).
(per
expert’s
affi
Inc.,
pet.);
Tenneco
Thus, distinguishes present- we law on waiver between conclude 239 JV actual showing ed evidence to create a fact of intent renunciation issue concern- action & infer ing against showing the causes of J G. intent based on Attayi 745 at 947. In the ence. Waiver situation, latter it the burden of the party showing is to Notwithstanding, responds who benefit J & G produce waiver to conclusive evidence that the evidence shows that 239 JV con manifest opposite party unequivocally & G tinued use the services of J after its assert its claim. position longer conflict of interest with ed intent to Formosa, performance damages JV's are on the the court held that while a benefit- based of-the-bargain be- prof- lost contract that was abandoned measure can include sales its, opposition to profits cause compensates Joe failed disclose apartment development. We For- bargain conclude would have been made if the had recovery prohibit 239 JV. performed promised. at 50. 239 mosa does not been Id.
Id. This is a particularly
Likewise,
onerous burden.
liability.
basis of
the defense of
Id.
official immunity only
persons
shields
from
complaining
suits
of official acts. Bon
Ordinarily, the issue of waiver is a
ham,
situation. 239 JV raised a fact issue CONCLUSION concerning waiver of its causes of action. *16 Having sustained 239 first and JV’s points error, third we reverse the trial IMMUNITY DEFENSES grant court’s grounds As summary for the Joe’s favor and in J & G’s favor and re- judgment, alleged possible J & G against mand 239 JVs causes of action legislative defenses of and official immuni proceedings. them for farther ty. Legislative immunity protects only those functionally duties that are legisla FITZGERALD, Justice, dissenting. Bowles, tive. at 758. S.W.2d Courts I believe the trial clearly court did not consistently have recognized a distinction abuse its denying discretion in the motion between legislative act of establishing by appellant Thirty continuance Two act, policy, or law and the nonlegislative (“239 JV’). Moreover, Nine Joint Venture act enforcing or administering poli I would affirm summary the trial court’s act, cy, or points law. Id. J & G to the judgments on appellees behalf of both moratorium, votes for the apartment (“Joe”) Harry J. Joe and Jenkens & Gil- extensions, development, and the charac (“J christ, G”). I P.C. am concerned terizing legislative them as acts that deter duty today by major- about the created Joe, policy. mine Whether and conse ity may lawyers serving affect in the G, quently J & would be immune from the Therefore, respectfully sector. I damage from the vote does not address the dissent. duty to disclose conflicts interest to a Legislative client. immunity only a Background Procedural duties, legislative shield for not for the private duties of an attorney to his client. against 239 JV filed both suit Here, 18, 1997, the actual vote April is evidence of the J & G on alleging a breach interest, duties, conflict with the client’s not the of their fiduciary specifically their 2000, 220, (Tex.App. to 239 loyalty, JV. The defendants — Dallas 12, 1997, its discretion May pet.). affirma- The court abuses answered on both no alia, any guid tively pleading, inter the defense it acts without reference when Aqua immunity upon principles. on the Downer ing based Joe’s service rules Inc., City Irving.2 Operators, On 701 S.W.2d Council marine (Tex.1985). may 12, 1997, An court appellate Joe filed motion for June of discretion solely on a trial court for abuse summary based reverse record, it if, immunity. searching 239 JV after affirmative defense arbi con- responded initially with a motion for the trial court’s decision clear v. York tinuance, seeking postponement of the unreasonable. Simon trary and Co., 793, 795 set for summary judgment hearing Rigging Crane & 739 S.W.2d —then DISD, (Tex.1987); it dis- at 235. July could initiate 1997—so set for covery. Although case was 166a(g) reviewing In the denial of a rule 3, 1997, trial had on November continuance, we consider three motion discovery no The trial undertaken at all. (1) length the case had factors: of time court the motion for continuance denied (2) file; party seeking been on whether the granted Joe’s motion for had due dili the continuance exercised judgment. year, the next the re- Over gence attempting the discov to obtain discovery. In maining parties conducted (3) materiality of ery sought; and August & G amended J filed its Bergman, discovery sought. Laughlin v. summary judgment, its six motion for (Tex.App. 65-66 — Houston separate that is in this grounds, at issue pet.); v. Kel no Levinthal [1st Dist] appeal. granted The trial court Clinic, 508, 510 sey-Seybold unspecified grounds. amended motion on Dist.] [1st — Houston This followed. appeal writ). ad these three factors are Unless affidavit, specifically dressed The Motion for Continuance ruling will not be overturned. trial court’s error, point first 239 JVs com Coach, Inc., 547 Sign Royal Co. v. McAx *17 plains that the trial court its dis abused 368, (Tex.Civ.App. 369 S.W.2d — Dallas denying cretion in 239 JVs Motion writ). instance, 1977, neither no Summary Judgment Continuance of Joe’s the accom the motion for continuance nor it Hearing. argued 239 JVs motion unqualified an panying affidavit establishes discovery had been unable to ear conduct right to a continuance. lier, required discovery prepare but Time on Length File. response adequate judgment its granting motion. The or denial 239 JV filed motion for continuance approxi a had file of motion for continuance is within the case been on when mately trial two and one-half months. The court’s sound discretion and will summary judgment hearing be of dis was scheduled disturbed absent clear abuse three from the Corp. Gayle, Motors 951 months date approximately cretion. Gen. v. 469, (Tex.1997); original Trial was Villegas petition. 476 v. of 239 JVs S.W.2d (Tex.1986); 624, than after that Carter, less four months 626 scheduled circumstance, Finlan, 27 date. Under that Indep. hearing Sch. Dist. v. Dallas undisputed It a member of the 1997. May May Council from 1989 to 914 month passed plain
each
without the
summary judgment hearing.
the scheduled
moving
tiff
its case
signifi
forward was
Likewise,
917 (tri 1993, (Tex.1996) writ 640, [1st Co., (Tex.App. Dist] 646-47 925 S.W.2d — Houston Forsyth, v. w.o.j.); al “had all the information see also Mitchell court relevant dism’d 2806, 525-26, mo summary judgment 511, at 86 hand” to decide 105 S.Ct. 472 U.S. (the disallowing (1985) for discov tion and more time offi 411 insulation L.Ed.2d discretion); Holguin v. ery its was within func discovery is a cials from burdensome Pueblo, 843, Del Sur 954 S.W.2d Ysleta case, In trial immunity). this tion of denied) 1997, Paso 854 writ no materi have concluded that court could — El (when discovery further not have would before al facts remained be discovered summary judgment to the been material Thus, immunity issue. resolution immunity, trial ground sovereign of tribal its discre trial court was well within deny court did not abuse discretion a motion for continuance denying tion continuance). motion for ing impose unnecessary bur that would policy argue Finally, strong public concerns official. dens on against sought by the continuance 239 JV. 166a(a) of Civil Procedure Texas Rule majority the issue as Although the frames sum- provides party may that a move for discovery prohibited whether should be after the ad- mary judgment time immunity-based question proceedings, party appeared. has verse answered case, day. all can wait for another implication rule is The clear of that be decided trial that must is whether appropri- sometimes limit discov courts have discretion to discovery. The the need for ate without immunity-based pro ery appropriate case. concluded such a trial court this was ceedings, Supreme and the Texas Court in that abuse I see no clear of discretion question answered that in the affirma has conclusion. Chevrolet-Geo, In re 997 tive. See Alford (Tex.1999). grant are Courts Judgment4 FOR Joe’s Motion SummaRY ed discovery this discretion is not because may prevail A on defendant only a “tool for facts essential uncovering conclusively es pleads if he judgment adjudication,” also a accurate but an affir each essential element of tablishes capable of “weapon imposing large Rests., v. Gen. Inc. mative defense. Mills unjustifiable adversary.” costs on one’s (Tex. Inc., Wings, Tex. Easterbrook, (citing Id. at Frank H. sum App. pet.). Comment, Abuse, Discovery as 69 B.U. — Dallas motion the affir mary judgment asserted (1989)). the adver When L.Rev. immuni qualified defense of official mative official, public strong im sary policy Chambers, ty. Lancaster v. See peratives support only from immunity not (Tex.1994).5 As a 883 S.W.2d liability, also from of liti but the burdens official, Joe is immune from suit Valdez, gation Teran v. itself. performance faith of all discre good no the (Tex.App. Corpus Christi — Carr, writ); of his au tionary scope duties within the Font clearly identify abso- does not majority’s conclusion that "evidence discover- 5. Joe’s motion during ground raise fact legislative immunity [could] ed continuance lute govern- and his issues on Joe’s individual acts uphold a sum- This Court cannot motion. immunity mental defense.” theory not in- mary that was party’s cluded within motion. majority the mo- Because determined denied, incorrectly tion for continuance Joe's motion for did not discuss merits of summaty judgment. *21 918 Cook, 460;
thority.
G,
at
partner
S.W.3d
see also tus as a
at J & Joe consulted
Chambers,
919
Thus,
with
ing
did not err in
the results of his research
advo
the trial court
decid-
faith,
good
moratorium,
creating
in
ing
actions were taken
of the
thus
Joe’s
cates
a
attorney-client relationship
as matter of law.
his con
with
Conclusory speculation and
stituents.
Scope Authority.
of
conjecture
party’s right
to
cannot defeat
alleges
239
that it
mate-
JV also
raised
See,
summary
e.g.,
judgment.
Brownlee
concerning
rial fact issues
whether Joe
(Tex.
Brownlee,
111, 112
v..
665 S.W.2d
scope
authority
of his
in ad-
exceeded
1984) (conclusions
are
in an affidavit
in
vocating
voting for the
and
moratorium.
fact).
to
an issue of
sufficient
raise
A public
scope
acts within the
of his
official
evidence rais
Where
authority
discharging
if he is
duties
suspicion of
es no more than surmise or
Chambers,
to him.
generally assigned
883
issue,
in
fact
genuine
fact
issue of
ex
summary
at 658.
judgment.
Wig
ists to defeat
that, in response
evidence establishes
to
Overstreet,
gins v.
962 S.W.2d
200
multi-family
in
housing
saturation of
(Tex.
App
pet.
Dist]
[14th
. —Houston
City
Irving,
Joe voted with the other
denied);
Cathey, 893 S.W.2d
Booth v.
council
impose
members to
then to
—and
1995),
(Tex.App
rev’d
720
on
. —Texarkana
multi-family
extend —a moratorium on
(1995).
grounds,
other
housing
City
development. As
Council
member,
University
assigned
Bagg
v.
certainly
majority
Joe’s
duties
cites
Branch,
casting
included
votes
the best
Texas
Because Joe has established his to granted, trial we must affirm the law, immunity aas matter of and 239 JV judgment grounds court’s if one of the has identified no issue of material fact that in & motion are meritorious. asserted J G’s right, I affirm would defeat would (Tex. Brasher, Carr v. 776 S.W.2d 569 summary judgment in trial court’s favor of 1989). Joe. &
Jenkens GilchRist’s Motion Malpractice Summary Judgment FOR against The heart of 239 claim J & JV’s & summary judgment J G’s motion is legal malpractice, upon G is based breach cast as a traditional and a no- both motion duty loyalty firm’s 239 JV.8 evidence motion. P. See Civ. Tex.R. premised upon alleged The claim is two (i). 166a(c), In its review of (1) violations: failure inform J & record, judgment this Court must deter- meeting September G of the council disputed mine whether a material fact is- (the (2) “Special Meeting”), fail 1994 and preclude summary sue exists that would firm ure Joe and the to avoid judgment. ap- question The ultimate purported “conflict of interest” between J peal summary judgment is whether ongoing representation & of 239 JV G’s proof that the movant is enti- establishes efforts, councilman, city and Joe’s as a summary judgment a matter of tled A Co., favor of the moratorium. Am. law. Gonzalez Mission Ins. (Tex.1990). legal malpractice requires proof claim In a tra- breach, motion, duty, proximate four elements: disprove, ditional the movant must cause, law, resulting damages. and Peeler v. as a matter of one of the essential Luce, Hughes & 827-28 elements of each of the nonmovant’s 1993), aff’d, 909 Siegler, causes of action. Lear Inc. v. — Dallas (Tex.1991). (1995). Perez, In If J & G’s motion, successfully disproved any one of a no-evidence the nonmovant must motion law, elements as a matter of then the probative come forward with evidence suf- those petition single negligence. in its sum- JV’s amended includes a conceded heading "Negli- mary judgment response “regardless cause of action under the gence/Gross Negligence and Breach of Fidu- negligence breach [of characterization ciary Duty Loyalty.” majority and of The claims], analysis fiduciary duty would Fiduciary Duty” analysis titles its “Breach of particular be the same under the facts of throughout as but addresses the claims mal- case.” practice, employing the traditional elements subject & judgment identify specific affirmed. matter of J trial court’s must be of 239 Likewise, representation JV. if 239 to come forward G’s JV failed more than scintilla of evidence majority purpose describes element, trial court’s any one then the representation of 239 JV scope of J & G’s Analysis must be affirmed. majority states with a broad brush. The just two elements suffices to confirm representation extended from ruling. trial court’s through purpose of J “[t]he provide was to G’s Duty. selling property assistance case, inqui any malpractice the initial development.” majority apartment ry attorney is whether owed that 239 and J & G implies thus *24 under the his client circumstances years single for some four on a worked duty question case. The existence of a is a property apartments. the sale of issue: the court to on the of law for decide based However, pleadings 239 own and the JVs facts of the Mitchell v. Mo. specific ease. judgment lead to a dif- summary evidence (Tex. Kan.-Tex.R.R., 659, 786 662 S.W.2d conclusion. ferent Ctr., Inc., 1990); Lampasas v. 988 Spring joint pleadings 239 JVs describe 428, 433 (Tex.App. [14th S.W.2d — Houston in purpose more restrictive venture’s 1999, pet.). propounds Dist.] 239 JV quoted terms than those above: separate duty. argues theories It two organized through 239 JV was ser- (1) duty that: J & G owed to inform it of a by provided early J in 1992 vices & G pending Special concerning Meeting singular in mind: plan with a business (2) moratorium, apartment and J & G develop acquire, and sell 239 certain duty a owed it avoid and disclose the Ranch, in Valley acres located The of interest developed conflict because community Irving, in planned master participation of Joe’s in moratorium-relat acquiring Prior to the acre- Texas. The majority ed activities. concludes representatives 239 con- age, JV these duties exist and the under Texas law Irving city with officials the firmed case. I respectfully disagree. facts of this acres, land uses on all 239 permitted (1) Specific subject legal rep- matter including designated two tracts resentation. development. apartment litigation] was in this [Before The of a duty existence to inform 239 JV process developing or had sold Special of facts related to pending acreage excep- all such with the sole Meeting scope is tied to the and nature containing apartment tract tion of J & G’s of 239 JV. Certain 11 approximately acres. ly fiduciary duty & owed a to 239 JV J G Original Amended Peti- Plaintiffs Second respect specific with matter on added). (emphasis tion represent firm which the was retained to lawyer fiduciary obligation it. A has the pro- The evidence represen facts to his “to disclose material history apartment- vides the the two Johnson, McClung v. 620 tation.” S.W.2d tracts: the first fourteen-acre designated (Tex.Civ.App. 1993; writ August only 647 in tract sold — Dallas n.r.e.) Forestier, (citing 415 time of refd Rice v. tract remained at the eleven-acre Antonio (Tex.Civ.App. proceedings. 711 these remainder — San task, n.r.e.)). developed initial sold writ refd acres were and issue, then, residences. addressing duty single-family City planning zoning” The record contains a statement one fore and and “before principals internally” of 239 JV’s that since “J & and not to refer it to Council represented G; fact, has in its formation G JV firm the law of J & in J & G never subsequent dealings.” and business How- City represented 239 before the Coun- JV ever, parties’ summary judgment evi- Jerry Ragsdale, personal appear- cil. specific dence has identified two tasks Council, emphasized ance before the that were undertaken J & on behalf G practice made it a to do business JV of 239 Ranch Valley develop- JV and the attor- through “principals” its First, ment before the moratorium vote. neys. represented J & G 239 JV its arguing impo basis exists for Second, 18, 1994, August formation. case, duty of a in this cites sition Thau reviewed the contract for the William addressing cases to inform apartment tract and sale the eleven-acre specifically relating client of matters to the gave princi- comments on it to the 239 JV agreed-upon representation attorney. of an Thus, pals by ap- telephone. according to Trinity example, For cites Univer pellant’s pleadings sum- relevant Bleeker, sal Ins. Co. evidence, mary judgment scope 1997) (Tex.App. Corpus (regard Christi — *25 purpose representation of & close to J G’s of ing failure to communicate existence city September the time of the 1994 offer), modified, settlement meeting council was limited to the review D.A.S., (Tex.1998), and Matter 951 of an already-negotiated of sales contract. 1997) (Tex.App . —Dallas may helpful spell It out also be what appeal in (regarding attorney’s failure scope purpose was not within the and of J client juvenile proceeding from to inform of 239 It is undis- G’s JV. guardians appeal and of conclusion that, puted Irving City before the Council frivolous and to recommend would be moratorium, passed the J & G had never dismissed), appeal granted mandamus be represent been retained to before JV (1998). grounds, other City any capacity the whatso- correctly Each discusses an of these cases ever, any zoning not in particularly and attorney’s duty keep a client informed that, similarly undisputed matter. It the at ongoing about an matter which enacted, before the moratorium was torney representing the client. Neither expressly represent elected to itself JV case, nor the facts of this these cases Irving City before the Council without as- however, attorney impose duty upon a legal sistance from counsel. The to inform a client of matters that are whol specific
judgment evidence confirms ly separate apart agreed- from represent intent of 239 JV to itself. Joe’s upon representation. Thirty affidavit states that “Two Nine majority that J agree I cannot with the appeared City the Joint Venture before reviewing a representing <& G’s Council, through Jerry Ragsdale. Mr. Mr. property apart- to an contract for sale Ragsdale Thirty stated that Two Nine and ex- developer significantly alters ment Joint Venture chose not to do business responsibility of both J pands the area of attorneys, to deal through with cities but Joe, lawyer-legislator, beyond & G only through principals.” This state- contemplated or originally parameters by representatives ment is corroborated case, In this Hewitt, agreed parties. lawyer a and 239 239 JV. Arthur to 239 accountable majority holds J & G partner, stated the “best decision” matters, including notifica- zoning perform all of the work “be- JV for made was cit- lapse by to cure this jority endeavors meeting agenda. council’s city tion of and former rules current majority’s enlargement ing to various reject I majority But responsibili- duties and as lawyer-lеgislator’s professional conduct. do responsibilities If a firm’s limited Texas Disci- concedes, ties. to the preamble monitoring zoning not include issues spe- Professional Conduct plinary Rules of council, respon- city these proceedings of not to be that the rules are cifically states inferentially created be- sibilities cannot be liability: of civil to define standards used for firm on a contract cause the worked to de- undertake rules do not These us, In the J of the land. case before sale liability law- civil fine standards these responsibilities; had no such & G conduct. Viola- yers professional re- expressly had responsibilities been rise to a give does not tion of a rule of 239 JV. principals tained action nor does cause of private (2) interest. Alleged conflict of that a any presumption create purported second 239 JV identifies its a client has been breached. duty to part on the of Joe obligation as an Likewise, designed are not these rules “conflict any purported to avoid and J & G deci- procedural to be standards rep- ongoing J & of interest” between G’s Furthermore, purpose sions. efforts, resentation of 239 JV they when rules can be abused these councilman, city favor of the parties as by opposing are invoked obligation Irving moratorium. Within weapons. The fact that procedural conflicts, that J to avoid 239 JV demands lawyer’s self- just for a rule is basis ac- appropriately “ongoing deal & G assessment, sanctioning a law- or for regarding act [its] tions and failures to *26 of a dis- the administration yer under regard to [JV] imply authority, does not ciplinary briefs, pleadings, Moratorium.” The pro- in a antagonist that an collateral crystalize majority’s opinion and the fail standing to ceeding or transaction has precise circumstances of the so-called Ac- of the rale. seek enforcement ma- any specificity, “conflict” with and the in the rules should cordingly, nothing language to de- jority uses no consistent any augment substan- be deemed the conflict it attributes to Joe.9 scribe the extra- legal duty lawyers or tive Simply put, appears and the violating consequences of disciplinary in the majority see a conflict of interest duty. such fact that: Joe, Irving City as a member DisciplináRY R. PROf’l Conduct Tex. Council, positions or could take would ¶ ad 15. that have preamble Courts trans- that affect the real estate would pream taken the dressed the issue have represented in which J & actions G See, seriously. e.g., Judwin directive ble’s 239 JV. Harrison, P.C., Griggs & Props., Inc. v. at Majority Op. (Tex.App. — Houston curiam, 1998), pet. per denied Dist.] summary judgment response [1st 239 JVs (State (Tex.2000) Bar Rules authority for the absolutely cited no negligence through client’s duty. The ma- not enforceable imposition of this second "fiduciary legal obli- or other majority well as Joe’s example, the refers at different 9. For conflicts with 239 JV concern- "personal times to Joe’s or gation to a non-client” and his moratorium,” ing impending vote on the "the of a client.” and the interests civic interest moratorium],” as and "his actual vote [on Reagan, Adams v. claim); majority’s inability identify The writ) no Worth applicable conflict rule should not be sur- — Fort (client’s charge of conflict of interest prising. An ethical “conflict”—or disciplinary proceed should be raised duty loyalty suggests of a breach — ing). disciplinary The rules set forth the lawyer allegiance has divided his be- proper lawyers “solely pur conduct of parties, tween two or more to one’s detri- pose discipline profession.” within the simply ment. There is no evidence of Sales, Hadley Edgar, J. Jr. <&James B. being so conflicted. There is no Texas Torts Remedies repre- evidence Joe (2000). Thus, § pri no 12.02[1][a][ii][A] or citizens’ sented the some vate cause of action exists for violation of any summary judg- group.10 Nor is there rules, and the rules “do not define the part ment evidence of self-interest on Joe’s lawyer’s liability standard for a civil a conflict. could serve as the source of conduct.” Id. professional It is clear the no more and no less than Joe did disciplinary provide requi rules cannot lawyer-legislator he made decisions does: duty malpractice by site element of a claim policy issues based on his view of the Nevertheless, majority a client. relies people represent- interests of the he best an exist on these rules alone “evidence” disciplinary prohibits No rule such ed. outset, At I am ing of care. conduct; disciplinary rule brands such supreme court’s troubled this use of the policy conduct as “conflict” because in a the clear rules manner violates ultimately a client’s at issue is adverse to rules dictates themselves. economic interests. However, appro- if the rules even were priately part duty inquiry, of our the ma- not ad- majority and the do jority’s position persuasive. would not be single dress the rule that discusses obli- Indeed, despite the number of ethical gations public related to service. Rule provisions opinion, discussed lawyer on a who imposes 1.10 constraints majority identify a rule that does employed sector subse- J & G. majority violated quently private moves to the sector. addresses at least five ethical rules or primary protecting thrust of the rule is *27 (Third) sections of the Restatement information, government confidential (the Governing Lawyers Law “Restate- I at issue in this case. which realize is not ment”): (1) § Restatement 135 and its However, addressing in mechanisms for (2) f(i); DR comment the former 8- a matter in screening lawyer a from which (4) (3) 101(A)(1); 1.11(c); Rule Model govern- confidential might possess he such 1.06(b)(2) Disciplinary Texas Rule information, the rule does define the ment (5) 13; Disciplinary comment Texas public within the concept of a “matter” 1.13(a) (although Rule it dismisses com- in our helpful That definition is realm. irrelevant). provision 3 to ment this identify effort to the limits of J G’s However, majority in each discussion the 239 JV: it provision is forced to concede that the rule, “mat- As used in this the term really speak not to the addresses does regulation-mak- not include duty posited in this case. ter” does conflict or response argument to J & G’s try in its evidence in 10. 239 JV did to raise this motion; acted as tended to show Joe response motion that to Joe’s any City Irving citizens’ speculation for the or it offered no more than rank counsel absolutely group. that time. It offered no otherwise. As disciplinary rules or rule-making proceedings or as- mg or liability for the imposition to the civil signments, but includes: “conflict,” non-communication (1) ap- adjudicatory proceeding, Any Restatement, upon a majority relies a other plication, request ruling or Note, a The Law book titled law review determination, contract, claim, contro- Hazard and Lawyering Messrs. investigation, charge accusa- versy, Hodes, appellate decision and a Houston similar, tion, particular other arrest or attorney concerning fee forfeiture when party involving specific a transaction from without consent settles a case parties; or statute cited. No Texas clients. No (2) action transaction any other or case—or relevant case Supreme Court of interest by the conflict covered or our sister one of from this Court appropriate government rules of persua- courts—is cited. The absence agency. imposition of civ- authority supporting sive DisciplinaRy R. Tex. Pkof’l Conduct il liability in this circumstance troubles me 1.10(f). rule teaches that when The even greatly. lawyer employed by govern- a a has been (which not), ment he would office imposition of this likely The effects of subsequent not out of a be conflicted liability me as well. concern “rule-based” matter if matter private for a client majority significantly creates a broad- lawyer’s past overlapped with the ostensibly pro- these duty, upon er based “regulation-making participation rules, than envi- even 239 JV fessional im- rule-making proceedings.” The clear today, lawyer-legislator After sioned. participation in plication is that broad- posi- a liability taking potential faces legislative based activities that are issue that could tion on broad-based provide con- nature will not a source of According affect a client. negatively quasi-legisla- flict the rules. under immunity majority, clothes proceedings tive in rule 1.10 identified making by public-interest every decision are to the analogous policy-making efforts protect a may longer officeholder other enacting a Council idеntify reper- a if client can lawyer multi-family moratorium on construction. (or the mere advo- cussion from decision If participation process such a would decision) lawyer- cacy of a of which conflict govern- not be a source of for the notify him. personally officeholder did employee private practition- ment turned may lawyer-legislator now example, For er, not, particular under should takes liability any time he face civil case, facts of this be source of conflict happens position a client who “adverse” *28 and, derivatively, for J & G. by a vote on a homeowner affected to be to a end, public may He be hable majority In the has not identi- services. the taxpayer af- happens to a provision rule or that de- client who be any fied ethical Even on by. a a vote tax rates. of created fected scribes a conflict interest scale, the ramifications this advocating voting the smallest lawyer-legislator’s a may compelling: be will law- ultimately may, exposure that its public policy a a dock- be doomed to defend application, yer-legislator to a client’s inter- be adverse to concerning his vote increase the identified et of cases majority ests. has Nor monthly sanitation fee? or all residents’ legal precedent supporting the existence on one side “duty repave city under streets disclose” his vote conflict-based the on which his case, of town before side the whether “evidenced” facts of client’s businesses are liability predicated located? The ma- entirely upon a per- jority presumes lawyer- such votes obligations ceived breach of ethical that legislator represent interest, conflicts of may ultimately dampen public spirit the and it orders them disclosed or law- the impede public by lawyers. service yer-legislator will face civil liability. Un- judicial This expansion duty, and thus like I majority, the see the lawyer-legisla- liability, particularly giant step our tor as serving interest with his jurisprudence, should responsibility be the votes, or her not the interests of one сlient undertaking our Legislature Texas that are somehow conflict with in- Court, or the Supreme Texas not an inter- terests of another client. conclude, mediate court. I would as a law, matter of that 239 JV failed to demon-
The record indicates that each of Joe’s strate claim grounded upon an exist- votes dealt with an general ordinance with ing legal duty it by owed to J & G. applicability to Irving. Neither the ordinance nor targeted Joe’s vote Proximate Cause. specifically entity.11 identified individual or addition, In 239 JV failed to come for Instead, Joe against apartment advocated ward with even a scintilla of evidence that development generally, position appli- Joe’s or J & conduct proxi G’s was the cable to developers landowners and alike any injury mate cause of to their client. throughout City. position His “pol- Although proximate cause in a mal oriented, icy” involving an abstract ordi- practice fact, usually question case is nance which a specific, lacked identifiable may be determined as a matter of if law transaction or party. undisputed It is the circumstances are such that reasonable advocacy upon was based his under- minds could not arrive at a different con standing of City. what was best for the All McKenzie, clusion. Mackie v. individuals and regardless entities — 449 (Tex.App. writ — Texarkana they employ whom attorneys sub- —are denied) (citing Pac. R.R. Mo. Co. v. Am. ject existing law and all changes Statesman, (Tex.1977)). law. changes The fact that the law in a proximate The two elements of cause are way may adversely entity affect an Nixon, and-foreseeability.12 cause-in-fact does entity not mean that the a claim has 549. against legislators hap- one of the who pened attorney to be its in another con- Conduct is the cause-in-fact of harm to text. if, another in a natural and continuous end, sequence, event, majority unduly produces has conduct an enlarged scope legal repre- J & G’s without the conduct such event would beyond sentation the parties’ intentions not have occurred. Lеar Siegler, 819 and has created a and a concomitant at 471. qualify To as the cause-in- give decision before the Council that impression want to that I believe that specifically involved a J G client was 239 it was somehow foreseeable to Joe or J & G gain attempt exemption JV’s later from (a) informing a client-landowner of a moratorium; Joe abstained from that (b) publicly-noticed meeting, or not communi- vote. cating among to a client-landowner that *29 city unanimously council members in favor of majority 12. states that “there is no dis- partner, the moratorium there was a J & G pute foreseeability.” about the Because issue could have caused 239 JV to lose its sales foreseeability adequately of was not in raised do, fact, dispute contract. I in that belief. motion, J & G’s I do not Nonetheless, address it here. I would not theory, to the fact, “duty act inform” the must have been a Under its defendant’s the majority in the issue as whether bringing posits factor about the substantial to material facts injury Boys’ lawyer’s Doe v. Club failure disclose alleged. Inc., Dallas, injury. The proximately caused 239 JVs Greater (Tex.1995). lawyer- us is the shown if real whether “Cause-in-fact is not issue before to negligence legislator’s did no non-communication14 239 JV the defendant’s more Meeting proposed made of the date and Special than furnish a condition which the inju- 239 JV’s injury possible.” agenda proximately Id. caused ry. persuade A me this number factors majority identify any not does evi- against be 239 JV. issue should decided to the breach dence cause-in-fact related First, importantly, the duty concerning perhaps a communication of the most already public I at issue purported conflict of interest. am information was unable City’s posted alleged knowledge the “conflict of in- as a result of the to discern how that inju- notice. 239 JV offered no evidence terest” could have caused JV’s City’s of its was undisputed September Special Meeting It is that the the notice ries. way. appears defective in The record original 1994 vote on moratorium (8-0), and, passed unanimously adequacy to under Texas subse- establish quently, every Open Meetings to Act. vote extend the moratori- See Tex. Gov’t Code 1993) (“notice (8- (Vernon § Ann., a passed by overwhelming margin um 551.043 8-1). Therefore, meeting governmental body a be or the moratorium must if passed posted place readily would had in a accessible to the have Joe abstained repeatedly general from or if he had for at 72 hours before voting public voted least event, it. against meeting”). In either time of the contract scheduled Thus, comparison on its of this situation had eleven acres land 239 JV’s attorneys had would have suffered same fate. De- with other cases which spite majority’s assertion to the con- duties to disclose information their cases, trary, In those nothing persuasive. the record indicates clients is not private that —had told either or of a or Joe 239 JV J & G information issue was nature; attorney he supporting the moratorium— confidential was the only person could inform the JV could have avoided'economic harm. who client simply necessary consequence Joe’s vote was not to the some fact that was to the moratorium, passage representation. and 239 JV has Ghent’s The information evidence, conjecture, agenda at issue in time and presented only not this case—the advocacy public, that Joe’s city meeting influenced other council —was councilperson’s private failure confidential.15 It involved vote.13 This or entity identify meeting as to of a public public fact issue causation related about This public given. to the conflict is which notice had been purported duty disclosure in the duty. scheduling fatal to claim under that information was 239 JV’s Indeed, duty lawyer has a to communicate the 13. record duty failing contains evidence from a number of information and breaches meetings indicating and, therefore, Council other do so. I see such zoning championed by votes related to issues terminology. use former garner majority. failed even petition amended 15.239 JV concedes in its Although "non-communication” "fail- was not confidential the information may ure to communicate” be used inter- privileged. contexts, many changeably instance terminology the latter the notion that includes
realm,
public,
was available to the
and was unable to act
City’s public
on the
anyone
could have been known to
interest-
notice as JPI had done.16 239
could
JV
City
ed in
issues.
relying upon
have been
Joe to monitor
council proceedings
and inform it of
addition,
In
239 JVs
claim
sole
is that J
significant developments on this issue.
convey
information;
G did not
this
it
specifically
239 JV
never
assumed the task of
asserts that
it did not know this
monitoring
Through
zoning proceedings
City
Irving’s
at
the
information.
compliance
Act,
with
Open
Meetings
Council. 239
had the
opportunity
JV
same
239 JV received the same notice of the
for notice of
meeting
that these other
Special Meeting that all members of the
entities had.
should not
We
tolerate or
public
interested
received.
City
See
reward efforts
239 JV to shift this
San Antonio v. Fourth Court Appeals,
responsibility
to J & G and thus distance
(Tex.1991)
(intended
consequences
itself from the
of its actions
requirement
beneficiaries of Act’s notice
and,
time,
compensation
the same
seek
are “members of
public”);
the interested
by laying fault at the feet of Joe or J &
Meno,
Stockdale v.
124-25 G.17
denied) (in
1993, writ
— Austin
response
JVs
and briefs before
tent of
safeguard
the Act is to
public’s
summary judgment
Court cite no
evi-
interest
knowing workings of govern
stating
dence
it did not know about the
bodies;
mental
intended beneficiaries are
meeting, only that Joe and J & G did not
public”).
“members
the interested
Cer
inform it about the meeting. This Court is
tainly 239 JVs own evidence indicates that
asked to infer 239
other members of the
JV did not know
public
interested
However,
had notice of
meeting:
public meeting.
advance of this
pur
JVs
clearly
chaser
meeting
knew of the
be
reasonable inferences can
be drawn
cause it
very
canceled the contract
summary judgment
favor of the
nonmov-
day;
same
and at least
develop
one other
Nixon,
ant.
In majority 239 JV and the practice represent sistent itself before apparently agrees, that had Joe or J & G city council and to monitor its own informed it of Special Meeting, 239 JV activities, it would not tract, could have be reasonable to quickly “platted” its own done, infer that 239 had no knowledge JPI had so as to JV “grandfa-' be City’s meeting. thered” under the absence of summary former ordi- judgment non-movant, nances. But 239 offers no I evidence from the explaining why evidence J & G decline to draw that inference.18 acted, remembered, 16. JPI always zoning must be on the have admitted it handled mat- meeting, notice of the Original not on informa- ters on its own. See Plaintiffs Peti- ("Prior particular city tion as to how a acquiring [Valley member of the tion Ranch] may acreage, representatives council vote. of 239 confirmed Irving city permitted officials the land noted, acres, previously including As the record indicates uses on all 239 two tracts represent designated that 239 JV had decided to apartment development.”). itself in municipal zoning appearances. prin- JV, nonmovant, cipal 18.Although Art Hewitt admitted that J & G had as the had represented never 239 JV before the knowledge no burden to establish its lack of Moreover, pleadings definitively, required Council. 239 JV’s it was to come forth *31 es- stances, judgment record summary the militating against another factor Still of pub- nature the vel non position is the of that Joe’s notification JV’s tablishes information infor- lic here. The involved information meeting agenda, the date public merely the mation informed disseminated, not could already publicly hearing by the public would be conducted any of of 239 cause have been to city council on certain date relative end, I injuries. conclude In the must JVs nature, By its such items.19 two described [not] G’s “act or omission was that J & relay notice could not the outcome advance injury” bringing about substantial factor meeting. of if had con- And even Joe 477; Doe, at See 907 S.W.2d to 239 JV. veyed own to support his intention Allbritton, Pump 898 S.W.2d Union Co. Special Meeting, moratorium Klein, (Tex.1995); Rodriguеz v. 773, 775 give any not indica- fact would definitive (Tex.App. Corpus — might vote tion of the outcome of 1997,no pet.). Christi meeting. at the ultimately be taken eight. councilperson among one on 239 to come The burden was evidence of each essen- forward with some Nonetheless, argues it should 239 JV P. of its claim. Tex.R. Civ. tial element position been told of Joe’s on have 166a(i). point specif- to required It was moratorium so that it could have made its summary judgment ic evidence that would concerning “grandfa- own decisions process. But fact on thering” genuine 239 JV’s own evi- raise a issue material causation; in that dence establishes JPI succeeded is not the element of Court grandfathering process upon public based record to search the to determine required summary no information alone: there is exist. Rolen v. if such an issue could See judgment knowledge evidence JPI had Co., Burroughs Wellcome councilperson other how Joe denied) (Tex.App. writ —Waco Thus, planned to vote. notifica- City Houston v. Creek (citing Clear City tion must have been sufficient (Tex. Auth., 671, 677 Basin moratorium, if a avoid landowner 1979)). sup- presented evidence to do so. non-communication chose cor- porting cause-in-fact. trial court on position the moratorium could not for sum- rectly granted J & G’s motion injuries. caused 239 have JV’s mary judgment. Lampasas, 988 S.W.2d set poli-
The ultimate council vote a new at 436.
cy City Irving. identify It did JV; rather,
or specifically target 239 its Immunity policy actions constituted a decision direct- & G that was entitled ed J asserts at certain construction activities within im- upon Joe’s Irving. Under these circum- based Comprehensive Report raise Plan Consul- with evidence sufficient to a fact issue Freilich, ground each of the no-evidence J.T. tants Dunkin Associates 166a(i). Tex.R. Civ. P. motion. See Strategic Morgan, Is- Leitner and Carlisle— particularly such an I am reluctant draw sues given the ease with which 239 inference Adopting On Limitations ORDINANCE— concerning have raised a fact issue could Processing Applica- Acceptance New knowledge. lack of Family Multi tions Establishment To a Period of Not Land Uses for Time “public posted announced a notice Dаys Exceed 120 hearing” concerning following agenda items:
munity defenses.20 When a defendant To advantage take immunity, Joe’s J summary judgment moves for upon based & G must have established that each act of defense, an affirmative conclusively must which complains 239 JV falls within either establish each essential qualified immunity element of that his legislative or his Rests., defense. immunity.22 General Mills I have quali- addressed Joe’s at 832. fied immunity at length the preceding discussion concerning Joe’s motion for undisputed It that 239 JV’s claims summary judgment. The same reasoning against the firm exclusively are rooted here, applies and the same result follows. Indeed, the conduct of Joe. response its Legislative immunity protects “function- summary motion, J & G’s judgment ally legislative” acts. See Clipp, Bowles v. JV describes its against claims J & G as (Tex.App. upon “based Joe’s activities and duties —Dallas denied). writ To discern which acts owed to lawyer G,” as a of J & and qualify acts, “legislative” “courts have it avers that “Joe not party need be a consistently recognized a distinction be- this suit in order for J & G to be liable in legislative tween the act of establishing a upon this case based Joe’s actions or fail- act, policy, or law and nonlegislative ures to act in his capacity lawyer as a and act of enforcing or administering poli- shareholder of J & ToG.” establish the act, cy, majority law.” Id. The does not conduct, firm’s liability major- for Joe’s dispute that advocating for the moratorium ity refers to a series of cases stating the (whether by providing leadership or re- principles settled liability vicarious support) search its voting and for the upon based agency partnership rela- moratorium are establishing policy. acts of tionships. See Op. at 11-12. Majority Thus, any liability J & G that flows from majority does not address the corre- advocacy Joe’s voting for the morato- sponding effect of lia- vicarious defensive rium policy vicariously by is barred Joe’s bility: to the extent 239 JV’s claims legislative immunity. against the firm liability are based on conduct, those However, claims are defeated majority opines that nei- See, legal defense of Joe’s conduct. qualified ther nor legislative immunity will e.g., County, DeWitt v. Harris protect J & liability G from for J & G’s (a (Tex.1995) private employer “is “continued without disclo- entitled to assert affirmative defense sure of the conflict with 239 JV’s inter- employee has liability”). Majority Op. ests.” at 22. 239 theo- JV’s case, Joe’s immunity defense of inures to ries concerning Joe’s non-communication the benefit of J & G as well.21 were added in petitions, its amended after pleading suit, 20.Joe’s asserts the affirmative de- J & G is not itself immune from as the 21. immunity broadly. Although fense of we would be for the acts of its Instead, council members. J & G can assert have determined that Joe did not move for defensively liability Joe's lack of to 239 JV in legislative based on im- words, this suit. In other because 239 JV munity, pleading supported his could have conduct, sues J & G for Joe's if Joe's such a motion as well as the one he did file blameless, conduct is found then J & G is not upon qualified immunity. based official or J liable to 239 JV. specifically & G’s Second Amended Answer pleads "legislative the bar of Joe’s offi- and/or Although legislative Joe did not raise im- immunity" cial insofar as 239 JV's claims munity ground summary judg- as a for his against J & liability G are based on derived motion, theory ment J & G did raise that in its from the conduct of Joe. own motion. on interests. Joe’s con- acted those granted based However, although im- qualified immunity. protected by legislative duct should be specifically did in its complain legal theory munity, regardless of the concerning original petition Joe’s non-com- urges. “positions” on the
munication about otherwise, majority By deciding *33 moratorium, pending allegations these re- to “duty its new has—in effect—allowed ally original contain no new facts: the its Special Meeting the inform [about pleaded that was petition Joe a member pur “duty to disclose agenda]” [the Council, that voted Irving City the he the ported trump conflict of interest]” times, all favor of moratorium three But this Court has principle immunity. and that “had principals if understanding to the subscribed Joe, they heard of nor were aware never in na legislative official’s conduct was Thus, in & partner that he was J G.” he is entitled to ture —as Joe’s was—then certainly implicit was from the outset Bartlett v. Cinе immunity. absolute See this suit that had not communicated— Joe (Tex. USA, Inc., 229, 234 mark directly or through the firm —to 239 JV writ). majority The App. no — Dallas concerning meeting, the moratorium cannot, own, deprive J & its on G of “position” it.23 immunity of “absolute” affirmative defense majority asserts this non-com- simply by changing plain the label on the munication involved “not official acts but so, majority By doing claim. tiffs so, attorney.” acts of an Id. In doing form substance. Joe’s pure elevates over majority merely echoing is efforts JVs immunity, entitled to and be conduct was theory liability to attach a new liability predicated upon & G’s cause J label, same conduct Joe. that new With conduct, J Joe’s & G was entitled sum asserts, majority vote for ground mary judgment on this as well. moratorium has into been transformed “evidence of conflict with the client’s herein, I For all the reasons discussed interest, not liability.” the basis of Id. But judgment. would affirm the trial court’s if placed upon it does matter the label changed; Joe’s conduct has his conduct changed,
has not and it is that is conduct immunity.
at issue decisions of a city advocating
acted as councilman in role, voting city policy. In that City considered
he the best interests of the my communicating agenda position I have above with the schedule or discussed meeting City Joe had to communicate to 239 public. for a to the Special Meeting. about the In terms of J charged giving that notice under however, immunity, affirmative defense of G's acting Meetings Open Act. Joe was as a rea- probably the issue be examined in should relying upon council sonable member terms of whether Joe’s non-communication give appropriate public of a notice city act of a reasonable councilman. meeting. charged Individual members are not council notes duties can statement own, Irving my upon housing in is based impair lawyer’s representa- effective the beliefs, in my political own formulated clients, private requiring tion of response to the desires of those who I lawyer-official represent the affected not I that it believe elected me. concluded client, representation, withdraw from was in the best interest of the § consent.” Id. or оbtain effective impose mora- and continue the (f)i. cmt. apart- building developing [on toria Disciplinary Rules Profes- The Texas pending comprehensive plan a ments] recognize sional conflicts inter- Conduct City. development for in the responsibilities est that occur because J & G claims because Joe’s duties are client: other than another public, to the J & no duty G has to control person a lawyer represent shall not [A] necessarily his activities. This means that representation person of that ... if the J & G not be responsible would for conflict reasonably appears to or become ad- be partner public checks is a who also versely by lawyer’s limited or law official. Accordingly, Joe could never have responsibilities per- ... to a third firm’s public conflict of interest between his lawyer’s or own son or law firm’s if he opposed duties and J & G clients interests. interest of those clients ser- Disciplinaey position vice. fact that R. Prof’l ignores This Tex. Conduct 1.06(b)(2). attorneys have than reflect diffi- can conflicts other comments representation culty assessing conflicts of interest other clients. Section (Third) litigation. than 135 of the Restatement Law contexts other Tex. Disci- plinary 1.06, cmt. 13. Governing Lawyers prohibi- R. Prof’l Conduct articulates factors to be considered representation appropriate tion of without relevant conflict caus- determining potential a client that can disclosure to for conflicts fiduciary ing nonlitigation con- lawyer occur has a or an adverse effect when flict include: legal obligation other to a nonclient: situations provides lawyer consent. Those instances that a can con- there is informed 5. Section 122 prohibited represent there are when the is tinue to a client when is a other, law, suing given adequate clients will be each conflict if the client is infor- provide lawyer will representation. reasonable that the mation the risks of such about lawyer representation to or more of the adequate one This section also delineates when a prohibited representing from client even if clients.