In Macias v. Gomez, a client sued his attorney for breach of fiduciary duty arising from the attorney’s trust later suing the client. No. 13-14-00017-CV, 2015 Tex. App. LEXIS 12967 (Tex. App.—Corpus Christi December 29, 2015, no pet. history). The client paid the attorney by transferring a one percent interest in a business to the attorney’s trust. The client then learned that the attorney may have to engage in conduct that negatively affected the other owners of the business. The attorney then withdrew from representing the client, and the client signed a waiver-of-conflict-of-interest document that stated:
As per our discussion, I have been explained by your firm that you will continue with your representation of [my fellow Border Furniture business owners] in this matter and I have agreed to waive any conflict of interest that may exist with you and your firm in the matter including but not limited to any conflict that might arise if you or your clients file suit against me or any of my entities.
After the client signed the waiver, the attorney’s trust sued the client alleging claims of breach of contract, fraud, and breach of fiduciary duty in relation to the business. The client then sued the attorney for breach of fiduciary duty in a separate proceeding. The trial court entered summary judgment for the defendant/attorney.
On appeal the client first claimed that the waiver was not enforceable because it was not acquired prior to the attorney representing the client. The client claimed that if the attorney knew prior to representing the client that a conflict of interest existed, then the attorney breached his fiduciary duty by representing the client without disclosing the conflict or obtaining the waiver. The court affirmed the summary judgment on this issue because no evidence created a fact issue that the attorney new of the conflict before beginning the representation.
The client also argued that the attorney breached a fiduciary duty by acquiring the waiver under a false pretense, i.e., the attorney allegedly told the client, prior to signing the waiver, that he would not sue him or represent anyone in a suit against him. The court rejected this argument, however, because the waiver expressly stated that the attorney may sue the client in the future. The court of appeals affirmed the summary judgment for the attorney.