Houston divorce lawyer Marcia Zimmerman recently defeated a former client’s legal-malpractice suit against her and her firm, winning a breach of contract verdict against him in the process. But the experience presents a cautionary tale for other lawyers about clients you think you know and the unexpectedness of a malpractice claim, Zimmerman says.
The suit she won represents the first time she ever had a malpractice claim filed against her in 30 years of practicing, and it arose not during her first time representing the plaintiff, her former client Eugene McMahon, in a divorce, but during a second time.
“Ten years ago I had represented him in another divorce. It was easy. I remember thinking, ‘I’ll go ahead and try to help him this time,’ ” Zimmerman says.
On Aug. 19, 2011, McMahon had filed an amended petition in Eugene V. McMahon v. Marcia Zimmerman, et al.,alleging that Zimmerman had been so negligent as to have committed malpractice in her representation of him in his 2008 divorce. He alleges in the petition that Zimmerman’s negligence and negligence per se in violation of the Texas Disciplinary Rules of Professional Conduct governing competent and diligent representation led to him being liable for more than $500,000 in debts that he and his ex-wife had amassed.
Zimmerman denied the claims in an Aug. 31 amended answer. In a counterclaim filed Feb. 12, Zimmerman alleged McMahon had defamed her by stating, while inside the courthouse hallways, that she had “messed up” his case. In a trial brief filed Oct. 8, Zimmerman alleged that McMahon had not paid his legal bills and thereby breached his contract with her.
After 281st District Judge Sylvia A. Matthews of Harris County granted a summary judgment and dismissal motion filed by Zimmerman and her firm, the parties tried the breach of contract and defamation counterclaims. In an Oct. 30 final judgment, Matthews awarded Zimmerman and the Zimmerman Law Firm $9,000 in damages and attorney fees. Specifically, Matthews granted Zimmerman and her firm $3,000 in damages for McMahon’s breach of contract, $6,000 in attorney fees, and another $45,000 in attorney fees, if necessary, to fight further appeals. But Matthews also issued a take-nothing judgment in McMahon’s favor on Zimmerman’s counter claims of defamation.
But Zimmerman’s former client McMahon, through his attorney Tony R. Bertolino of Bertolino LLP of Houston, says his client plans to seek a new trial.
Zimmerman says she has many regrets but not about how she practices law. “I’m not saying I never made a mistake, but when I make a mistake I come clean to the client,and I fix it,” she says.
Her recent experience as a defendant and cross-plaintiff in litigation has taught her new lessons, she says, adding: “The best advice lawyers can get is to listen to their gut. If something about a client tells you something is not right, you need to listen to that. You want to see how many lawyers the clients had before they hired you. I usually do that, but in this case I had represented [McMahon] years ago in another divorce.”
For Zimmerman, the outcome represents a bittersweet victory. Zimmerman says she and her firm are not covered by malpractice insurance because it’s too expensive for divorce lawyers. She says she wishes she had won her defamation cause of action and she had won more in attorney fees, since she says she has incurred significantly more than awarded — about $70,000 — in attorney fees defending against the malpractice claim.