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Civil Litigation No. 04-01-00759-CV, 6/18/2003. Click here for the full text of this decision FACTS: This appeal arises from a deceptive trade practices, breach of fiduciary duty and equitable fee forfeiture case brought by the appellant, Douglas Aiken, against his former attorneys, the appellees, Patrick Hancock and Mark Ferguson. On Dec. 4, 2000, Aiken filed suit against Hancock and Ferguson, alleging several causes of action, including DTPA violations, breach of fiduciary duty, breach of contract, negligence and gross negligence. Ferguson filed a motion for summary judgment that was partially granted by the trial court, dismissing Aiken’s breach of contract claims. Ferguson then filed his first amended motion for summary judgment under Texas Rule of Civil Procedure 166a(c) and 166a(i). This motion was granted. Aiken appeals from the trial court’s decision. HOLDING: Affirmed. Although an attorney does have a fiduciary duty to his client, Aiken’s characterization of his claim as one of breach of fiduciary duty is misplaced. Kimleco Petroleum Inc. v. Morrison and Shelton, 91 S.W.3d 921 (Tex. App. – Ft. Worth 2002, pet. denied). The focus of such a breach is whether an attorney obtained an improper benefit from representing a client, while the focus of a legal malpractice claim is whether an attorney adequately represented a client. Breach of fiduciary duty often involves the attorney’s failure to disclose conflicts of interest, failure to deliver funds belonging to the client, improper use of client confidences or engaging in self-dealing. Goffney v. Rabson, 56 S.W.3d 186 (Tex. App. – Houston [14th Dist.] 2001, pet. denied). Unlike a claim for breach of fiduciary duty, a legal malpractice claim is based on negligence and arises from an attorney’s alleged failure to exercise ordinary care. Cosgrove v. Grimes, 774 S.W.2d 662 (Tex. 1989). A cause of action for legal malpractice arises from an attorney giving a client bad legal advice or otherwise improperly representing the client. Greathouse v. McConnell, 982 S.W.2d 165 (Tex. App. – Houston [1st Dist.] 1998, pet. denied). For example, an attorney can commit legal malpractice by not using an attorney’s ordinary care in preparing, managing and presenting litigation that affects the client’s interests. Kimleco Petroleum Inc. v. Morrison & Shelton, 91 S.W.3d 921 (Tex. App. – Ft. Worth 2002, pet. denied). Such is the nature of the allegations here, the court states. In support of his breach of fiduciary duty claim, Aiken specifically alleges that Ferguson 1. falsely represented he was prepared to go forward and try Aiken’s case; 2. failed to reveal to Aiken that he was not prepared to go forward and try Aiken’s case; 3. falsely represented that the expert witness was prepared to testify concerning a full audit; and 4. failed to reveal to Aiken that the expert witness was not fully prepared to testify concerning a full audit. These allegations constitute a claim for legal malpractice. Moreover, these allegations do not amount to self-dealing, deception or express misrepresentations in Ferguson’s legal representation, and do not support a separate cause of action for breach of fiduciary duty. With respect to his DTPA claim, Aiken alleges Ferguson violated DTPA ��17.46(b)(3) and 17.50(a)(2). Aiken alleges that statements made by Ferguson were express misrepresentations and constitute unconscionable actions. These alleged statements do not constitute deceptive conduct, but rather, conceivably negligent conduct, a distinction recognized by the Texas Supreme Court in Latham v. Castillo, 972 S.W.2d 66 (Tex. 1998). The allegations do not support an independent cause of action under the DTPA, separate from the legal malpractice cause of action. Generally, to recover on a claim of legal malpractice, a plaintiff must prove: 1. the attorney owed the plaintiff a duty; 2. the attorney breached that duty; 3. the breach proximately caused the plaintiff’s injuries; and 4. damages occurred. Peeler v. Hughes & Luce, 909 S.W.2d 494 (Tex. 1995). When a legal malpractice claim arises for prior litigation, the plaintiff has the burden to prove that, but for the attorney’s breach of duty, he or she would have prevailed on the underlying cause of action and would have been entitled to judgment. Even assuming Ferguson breached his duty to Aiken as an attorney, Aiken did not raise a fact issue that Ferguson’s representations and subsequent conduct were the proximate cause of his injuries. Aiken failed to produce evidence that, but for Ferguson’s alleged actions, he would have prevailed. OPINION: Green, J.; Stone, Green and Duncan, JJ.

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