Part of my standard spiel to lawyers on “how to avoid malpractice claims” is for the lawyer to take steps to avoid becoming the unintended lawyer. Any time there are multiple potential parties who think they may rely on the attorney’s advice, the attorney needs to clarify in writing who the attorney does and does not represent. This problem can occur in any number of fact patterns, but I tell lawyers that one of the most common fact patterns is when an attorney represents a corporate entity in litigation, and employees of the entity are being deposed and think the lawyer represents them individually.
If you don’t do what I recommend, then you may end up with a case like Bergthold v. Winstead Sechrest & Minick, a case decided by the Ft. Worth Court of Appeals last week.
Bergthold was an employee of Southwestern Bell Yellow Pages. SWB was sued by its employee, Bingham, and Winstead was hired to defend SWB. During Bingham’s lawsuit, Bergthold was cooperating with Bingham and his attorneys, meeting with Bingham’s attorneys to discuss the facts in the lawsuit and to discuss the possibility that Bergthold might file his own suit against SWB.
During the course of the Bingham suit, Bergthold and several other SWB employees were deposed. Mr. Bergthold spoke to a Winstead attorney a couple of times before the deposition, but Bergthold continued to cooperate with Bingham, even having private conferences with Bingham’s lawyer during breaks in the depo. When Bergthold was asked during his depo about his meetings with Bingham’s lawyer, Bingham’s lawyer objected based on attorney-client privilege.
At the depo, Bergthold brought several confidential SWB documents that the Winstead attorney did not know about it. After the depo, the Winstead attorney told Bergthold that Bergthold could be in trouble for bringing the docs. Sure enough, Bergthold was later fired.
Bergthold filed suit against Winstead, contending that in his two or three conversations with the Winstead attorney, the Winstead attorney told Bergthold that the attorney represented SWB and its employees. Bergthold made two arguments in his suit: (1) Winstead was his attorney and was negligent for failing to tell him not to produce the documents; or (2) Winstead was negligent for not advising him that Winstead was not acting as his lawyers. The trial court granted Winstead’s summary judgment, and the case went to the Fort Worth court of appeals.
At the Court of Appeals, all three judges on the panel concluded that there was no attorney-client relationship, but the court was split 2-1 on whether Winstead was negligent for failing to inform Bergthold that there was no attorney-client relationship. Had the Winstead lawyer sent Bergthold a simple form letter saying “I represent the company, and I’m not representing you” the case would have been a slam dunk. Instead, even with Bergthold cooperating with the opposing party and relying on the advice from the other side, one appellate judge still thought Berthold was entitled to pursue his claim.
This case should serve as a cautionary tale for all of us. As I said, this is a fairly common fact pattern, and Winstead should have had simple forms clarifying its role. But because it didn’t, it was involved in costly and protected litigation.
It should also serve as a warning that even the best of us can be victims of legal malpractice claims. Winstead is a very good firm (I have several friends in the local office), and they know better. But even the best lawyers can get in trouble when not following routine advice.