Damages and Remedies


A plaintiff in a negligence or breach of fiduciary duty legal malpractice action must prove that the breach of duty by the lawyer proximately caused the plaintiff’s injury, resulting in damages. Not all negligent acts or breaches of fiduciary duty by lawyers actually cause injury. Proximate cause entails foreseeability and cause in fact. Foreseeability contemplates that the lawyer should have anticipated the risk to the client by the negligent act. Cause in fact requires that the negligent act or omission be a substantial factor in causing the injury without which the harm would not have occurred. Proof of causation in legal malpractice cases usually requires the expert testimony of an attorney to link the breach of duty to the injury caused thereby.

The Texas Jury Pattern Charges defines proximate cause as that “cause which, in a natural and continuous sequence, produces an event, and without which cause such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that an attorney using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom. There may be more than one proximate cause of an event.”


The most common remedy sought by clients from their former lawyers is the recovery of damages occasioned by the negligence or other breach of duty by the lawyer. The traditional method of establishing damages when a lawyer negligently represents a client is to prove the “suit within a suit.” The plaintiff must prove that but for the lawyer’s negligence, the plaintiff would have recovered judgment in the original case, the amount of that judgment, and that any such judgment would have been collectible. In the case where the lawyer malpracticed a defendant’s case, the client must prove that but for the lawyer’s negligence, the client would have prevailed on a meritorious defense. The “case within a case” standard of proof however may not be required in breach of fiduciary duty and DTPA cases.

In other legal malpractice cases not involving underlying litigation, traditional rules on damages provide that the client may recover all foreseeable damages caused by the lawyer’s wrongful acts or omissions. And, exemplary damages may be recoverable for lawyer fraud or for other wrongful acts committed with malice.

Fee Forfeiture

A lawyer engaging in clear and serious violation of duty to a client may be required to forfeit some or all of the lawyer’s compensation in the matter, even if the client suffered no actual harm by virtue of such violation. Typically, fee forfeiture cases are premised on allegations that the lawyer committed a serious breach of fiduciary duty or fraud. In the trial a fee forfeiture case, a jury will consider whether the lawyer committed the violation claimed, and the trial judge will determine whether such violation is clear and serious and, if so, the amount of the fee to be forfeited.