In Beck v. Looper, Reed & McGraw, P.C., No. 05-05-00724-CV, 2006 Tex. App. Lexis 4568 (Tex. App.–Dallas May 26, 2006), the client contended that the lawyers were negligent and breached their fiduciary duties in connection with the drafting of an employment contract and the issuance of corporate stock. The client contended that its claim was not time-barred because the 4-year statute of limitations for breach of fiduciary duty applied to the breach of fiduciary duty claim, not the 2-year statute of limitations applicable to legal malpractice claims based on negligence.

Legal malpractice is governed by the two-year statute of limitations. Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a). A claim for breach of fiduciary duty is governed by a four-year statute of limitations. Tex. Civ. Prac. & Rem. Code Ann. § 16.004(a)(5).

The essence of a claim for breach of an attorney's fiduciary duty to his client involves the "integrity and fidelity" of an attorney and focuses on whether an attorney obtained an improper benefit from representing the client. Gibson v. Ellis, 126 S.W.3d 324, 330 (Tex. App.—Dallas 2004, no pet.). Unlike a claim for breach of fiduciary duty, legal malpractice is based on negligence. Cosgrove v. Grimes, 774 S.W.2d 662, 664 (Tex. 1989). The issue in a legal malpractice action is whether the attorney exercised that degree of care, skill, and diligence as lawyers of ordinary skill and knowledge commonly possess and exercise. Sullivan v. Bickel & Brewer, 943 S.W.2d 477, 481 (Tex. App.—Dallas 1995, writ denied). A cause of action for legal malpractice arises from an attorney giving a client bad legal advice or otherwise improperly representing the client. Kimleco Petroleum, Inc. v. Morrison & Shelton, 91 S.W.3d 921, 923 (Tex. App.—Fort Worth 2002, pet. denied). For example, an attorney can commit legal malpractice by disobeying a client's lawful instruction, by taking action when not instructed by the client to do so, or by failing to handle a matter entrusted to the attorney's care by the client. Id. at 923-24. Thus, regardless of the theory a plaintiff pleads, as long as the crux of the complaint is that the plaintiff's attorney did not provide adequate legal representation, the claim is one for legal malpractice. Id. at 924.