Can a lawyer be liable for failing to inform a client that another lawyer was negligent in representing the client? Yes. As a fiduciary, an attorney is obligated to render a full and fair disclosure of facts material to the client’s representation. Willis v. Maverick 760 S.W. 2d 642, 645 (Tex. 1988). Whether a previous lawyer was negligent may be material to the client’s representation for many reasons. For example, in a litigation matter, it could have an impact upon the client’s decision to settle the case. In a transactional matter, it may be important to advise the client that a previous lawyer was negligent, so the client can decide how to remedy the problem(s) caused by the lawyer’s negligence.
Additionally, it is important to advise the client of the previous lawyer’s negligence to prevent the statute of limitations from expiring on the client’s legal malpractice claim. Warning: If you fail to advise the client of this, you could be liable for the client’s lost cause of action against the previous lawyer.
Avoid the following scenario: The client hires you to take over representation from a previous lawyer. Subsequently, you discover that the previous lawyer was negligent, but you fail to inform the client. You conclude your representation of the client. Later, the client discovers from another source that the first lawyer was negligent, and the client sues the first lawyer. During the legal malpractice lawsuit, it is discovered that you suspected the first lawyer was negligent, and that you suspected this more than 2 years before the legal malpractice suit was filed. Based upon this fact, the first lawyer seeks summary judgment on the ground that the statute of limitations has expired. The court grants summary judgment, citing a long line of Texas authority which holds that knowledge of an attorney is imputed to the client. Now, the client is without a cause of action against the first lawyer — the real culprit. And now, you have become the next culprit (and a defendant) in a legal malpractice case for failing to inform the client of his legal malpractice claim against the first lawyer.
