To prevail on a legal malpractice claim, a plaintiff must show that “(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.” Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113, 117 (Tex. 2004); Greathouse v. McConnell, 982 S.W.2d 165, 172 (Tex. App.–Houston [1st Dist.] 1998, pet. denied). If a legal malpractice case arises from prior litigation, a plaintiff must prove that, but for the attorney’s breach of his duty, the plaintiff would have prevailed in the underlying case. Greathouse, 982 S.W.2d at 172. Cases often refer to this causation aspect of the plaintiff’s burden as the “suit-within-a-suit” requirement. Id. at 173. In general, one proves causation in a legal malpractice suit by expert testimony. Alexander, 146 S.W.3d at 119-20.

In Hoover v. Larkin, No. 01-05-00191-CV, 2006 Tex. App. Lexis 3405 (Tex. App.–Houston [1st Dist.] 2006), the client claimed that the lawyer had inadequately explained a settlement when it was dictated into the record, resulting in her receiving several thousand dollars less than she thought she was to receive. She asserted the lawyer spoke softly and she was distracted when the judge asked her to confirm her agreement on the record. The client claimed, inter alia, that she had sustained damages in the form of attorney’s fees paid to the attorney and that the suit-within-a-suit causation requirement did not apply to her claim for attorney’s fees. The court of appeals rejected the latter contention:

We do not agree that a legal malpractice claim for attorney’s fees does not require expert evidence of causation. A plaintiff in a legal malpractice case must demonstrate that any alleged damages, including attorney’s fees, were proximately caused by the breach of a duty by the defendant. See Judwin Props., Inc. v. Griggs & Harrison, 911 S.W.2d 498, 507 (Tex. App.–Houston [1st Dist.] 1995, no writ). Thus, to survive a no-evidence motion for summary judgment, Hoover must present evidence raising a fact issue as to whether her attorney’s breach of a duty caused damages in the form of attorney’s fees. Though Hoover presented the affidavits of two experts, neither affidavit avers that Hoover could have succeeded in her suit or in achieving the larger settlement but for her attorney’s alleged negligence; nor does either affidavit refer to any attorney’s fees incurred as damages. Without such evidence, Hoover fails to raise a fact issue that Larkin’s negligence caused her to incur attorney’s fees as a result of Larkin’s alleged malpractice.

The court also rejected the client’s effort to recover the attorney’s fees paid to her attorney as damages under a DTPA theory and under an Arce fee-forfeiture theory:

Hoover had the burden to present evidence that she incurred attorney’s fees as a consequence of Larkin’s wrongful conduct. She presents no evidence to demonstrate that if not for Larkin’s alleged misrepresentation of the terms of the settlement, she would not have incurred the fees she paid him, or that she would have recovered those fees as part of a successful DTPA claim against Larkin. Because Hoover failed to provide evidence that Larkin’s wrongful conduct caused her to incur, or fail to recover, the attorney’s fees she paid him, summary judgment was proper as to her claim under § 17.50(a) of the DTPA.

As to the Arce fee-forfeiture claim, an attorney who commits a clear and serious breach of his fiduciary duty to his client may be required to forfeit some or all of his fees. See Burrow v. Arce, 997 S.W.2d 229, 241 (Tex. 1999). Fee forfeiture is an equitable remedy whose primary purpose is not to compensate the injured client, but to protect the relationship of trust between attorney and client by discouraging attorney disloyalty. Miller v. Kennedy & Minshew, Prof’l Corp., 142 S.W.3d 325, 338 (Tex. App.–Fort Worth 2003, pet. denied). The client had previously lost an appeal on her fee forfeiture claim. Hoover v. Larkin, No. 14-00-00427-CV, 2001 Tex. App. Lexis 6313, 2001 WL 1046266 (Tex. App.–Houston [14th Dist.] Sept. 13, 2001, pet. denied) (not designated for publication). As a result, her effort to recharacterize her claim for attorney’s fees as a claim for actual damages for breach of fiduciary duty – as opposed to equitable fee forfeiture – was rejected:

Hoover does not cite to any cases classifying attorney’s fees paid to the malfeasant attorney as actual damages under a breach of fiduciary duty claim separate from the equitable remedy of fee forfeiture. To the contrary, courts distinguish between actual damages incurred as a result of the breach, and the equitable remedy of fee forfeiture. See Burrow, 997 S.W.2d at 240 (holding claimant need not prove actual damages to succeed in claim for fee forfeiture). Because our sister court already has held that summary judgment was appropriate on Hoover’s fee forfeiture claim, Hoover is not entitled to equitable disgorgement of attorney’s fees for breach of a fiduciary duty. To the extent she seeks attorney’s fees as actual damages, Hoover’s lack of causation evidence defeats her.