By Brett Goodman
In Texas, only a few cases have come out of the last decade concerning legal malpractice as relating to mediation. In Lehrer v. Zwernemann, after being unsatisfied with the work of the two attorneys he hired in a divorce proceeding, Lehrer sued two attorneys for malpractice. See Lehrer v. Zwernemann, 14 S.W.3d 775, 776 (Tex. App. – Hous. [1st Dist.] 2000, pet. denied). This subsequent suit went to mediation, but Lehrer again unsatisfied brought further suit against the mediator and the attorney he hired to bring suit against the first two attorneys. Summary judgment was entered for the mediator. The court outlined that, in legal malpractice cases, the standard of review is that the legal action taken by the professional must be a wrongful one that causes some legal injury. Lehrer found offense in that the mediator and opposing counsel had a former professional relationship, but the court found this had no impact on the mediation settlement agreement and that the mediator fully executed his legal duties.
Legal malpractice as an issue in a case does not seem to change background principles of the Texas ADR Act. In Alford v. Bryant, in 2004, Bryant employed Long as attorney to represent her in a dispute over a roofing contract. See Alford v. Bryant, 137 S.W.3d 916, 919 (Tex. App. — Dallas 2004, pet. denied). A written settlement agreement was hammered out in mediation, but a part of this settlement was that attorney’s fees would be left to the trial court. Bryant then sued her attorney for legal malpractice for failure to warn that this could be a possible outcome of settlement through mediation, but Long claimed that this was discussed between the two and the mediator. The court first elucidated how a party waives a privilege through “offensive use” of information and that Bryant waived confidentiality of the mediation through offensive use. Although Bryant at trial was fine with the testimony of the mediator to help his case, Bryant now tried to oppose it, citing confidentiality. The court, however, concluded that the testimony of the mediator should not be excluded because “[i]t is disingenuous for Bryant to claim error now when she expressly consented to this procedure at trial.”
These ideas also seem to extend outside of Texas. For example, in a 2007 case, a lawyer who had been admitted to the respective bars of Virginia and Florida ended up participating in mediation in Arizona but felt justified because of the Florida mediation rules with which she was familiar. See In re Non-Member of State Bar of Arizona, Van Dox, 214 Ariz. 300, 302, 152 P.3d 1183, 1185 (2007). It was ruled that the lawyer should be sanctioned for unauthorized practice of law in Arizona, but because it was determined that the attorney’s wrongful action led to little if any legal injury, the lawyer was only subject to an informal reprimand.
Brett Goodman is a summer intern at Karl Bayer, Dispute Resolution Expert. Brett is a J.D. candidate at The University of Texas School of Law. He holds degrees in Finance, Mathematics, and Spanish from Southern Methodist University.