Sam Lajzerowicz, Debra Traphagan and Alfredo Flores v. Clyde R. McCormick--Appeal from 407th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-05-00681-CV

Sam LAJZEROWICZ, Debra Traphagen, and Alfredo Flores ,

Appellants

v.

Clyde R. MCCORMICK,

Appellee

From the 407th Judicial District Court, Bexar County, Texas

Trial Court No. 2004-CI-12545

Honorable Janet Littlejohn , Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone , Justice

Sarah B. Duncan , Justice

Delivered and Filed: October 11, 2006

AFFIRMED

Sam Lajzerowicz, Debra Traphagen, and Alfredo Flores appeal the trial court's order granting summary judgment in favor of Clyde R. McCormick in a suit arising from McCormick's legal representation of the Appellants. Because the issue in this appeal involves the application of well-settled principles of law, we affirm the trial court's judgment in this memorandum opinion.

A cause of action arising out of bad legal advice or improper representation is legal malpractice. Sullivan v. Bickel & Brewer, 943 S.W.2d 477, 481 (Tex. App.--Dallas 1995, writ denied). A legal malpractice claim is based on negligence. Cosgrove v. Grimes, 774 S.W.2d 662, 665 (Tex. 1989). Texas does not permit a plaintiff to fracture legal malpractice claims into several causes of action. Aiken v. Hancock, 115 S.W.3d 26, 28 (Tex. App.--San Antonio 2003, pet. denied). A plaintiff also is not permitted to recast a negligence claim as a DTPA claim. Ballasteros v. Jones, 985 S.W.2d 485, 498 (Tex. App.--San Antonio 1998, pet. denied). A claim based upon the improper representation of a client or upon the failure of an attorney to exercise the degree of care and diligence that a lawyer would commonly exercise, despite its labeling, is a malpractice claim. Aiken, 115 S.W.3d at 28-29; Kahlig v. Boyd, 980 S.W.2d 685, 688-89 (Tex. App.--San Antonio 1998, pet. denied). The disciplinary rules of the State Bar do not give rise to a private cause of action and, therefore, are not enforceable through a legal malpractice claim. See, e.g., Jones v. Blume, 196 S.W.3d 440, 450 (Tex. App.--Dallas 2006, no pet.); Judwin Properties, Inc. v. Griggs & Harrison,P.C., 981 S.W.2d 868, 869-70 (Tex. App.--Houston [1st Dist.] 1998), pet. denied, 11 S.W.3d 188 (Tex. 2000); Dyer v. Shafter, Gilliland, Davis, McCollum & Ashley, Inc., 779 S.W.2d 474, 479 (Tex. App.--El Paso 1989, writ denied); Martin v. Trevino, 578 S.W.2d 763, 770 (Tex. App.--Corpus Christi 1978, writ ref'd n.r.e.).

Clyde R. McCormick represented nine members of a cooperative in a dispute relating to their ability to drive taxis. Prior to a hearing on an application for a temporary injunction, McCormick negotiated a partial settlement with Star Cab that enabled five of the members, excluding the Appellants, to continue driving taxis. Appellants' petition alleges that McCormick breached his duty to them by failing to withdraw from representation pursuant to Rule 1.06 of the Texas disciplinary rules when the partial settlement resulted in an alleged conflict of interest among the nine members. The DTPA claim simply alleges that by failing to withdraw, McCormick acted unconscionably by continuing to represent the Appellants. Even the affidavits the Appellants submitted in an effort to defeat summary judgment turn on the assertion that McCormick was required to withdraw pursuant to the disciplinary rules. Because a violation of the disciplinary rules does not give rise to a private cause of action, the trial court properly granted summary judgment with regard to the Appellants' legal malpractice claims, including the claim the Appellants attempted to recast as a DTPA claim. (1)

The trial court's judgment is affirmed.

Alma L. L pez, Chief Justice

1. "When a legal malpractice claim arises from 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." Aiken, 115 S.W.3d at 29. "This is commonly referred to as the 'suit within a suit' requirement." Ballasteros, 985 S.W.2d at 489. In his brief, McCormick asserts that the Appellants would not be able to meet this requirement because the Appellants, represented by new counsel, not only lost at trial but also were sanctioned because the trial court determined that their claims were frivolous. Because McCormick did not assert this ground in his motion for summary judgment and because the sanctions order is not a part of the record in this case, we cannot consider this ground as a basis for affirming the summary judgment. See Myer v. Cuevas, 119 S.W.3d 830, 836 (Tex. App.--San Antonio 2003, no pet.) (noting court cannot consider documents attached as exhibits or appendices to briefs that are not contained in record).