In Evans v. Adamo, No. 01-04-00872-CV, 2006 Tex. App. Lexis 6441 (Tex. App.–Houston [1st Dist.] July 20, 2006), Plaintiffs Yogi Evans and Jim Evans were relatives of Eddie Evans, who was criminally charged with forgery for having presented forged checks to a check-cashing business owned by Fatimah Ghanbarzadeh. Yogi had a pre-existing business relationship with Ghanbarzadeh. According to Yogi, Ghanbarzadeh called him more than 10 times to help her get her money that had been taken by Eddie through forgery because she knew that Yogi and Eddie were related. Yogi and Jim wanted to pay restitution to her and to request that she drop the charges against Eddie. Yogi and Jim contacted Adamo to make sure that it was legal to approach Ghanbarzadeh. Adamo was Eddie’s attorney. According to Yogi, Adamo assured Yogi and Jim that it was legal to offer to assist Ghanbarzadeh to recover the money. Adamo also told Jim that if Ghanbarzadeh agreed to restitution, it needed to be in writing. Adamo’s assistant typed up an affidavit for Ghanbarzadeh to sign.

Yogi, Jim, and two relatives went to Ghanbarzadeh’s business to speak with her about the charges against Eddie. Because of a complaint from Ghanbarzadeh regarding Eddie’s relatives’ attempting to persuade her to drop the case against Eddie, police officers monitored and recorded the conversation between Ghanbarzadeh and Yogi, Jim, and the other two relatives. The transcript of the conversation was introduced into the record, but the speakers were identified only as “Witness 1,” “Witness 2,” “Witness 3,” “Witness 4,” and “Witness 5.” During the course of the conversation, which lasted over 90 minutes, Eddie’s relatives encouraged Ghanbarzadeh to tell the district attorney that she had mistakenly identified Eddie as the person who had presented the forged check to her for cashing. Eddie’s relatives told Ghanbarzadeh that they had encountered a similar situation once before, in California, where they had paid $100,000 in restitution on behalf of a family member, but the State of California had continued to pursue charges. Eddie’s relatives tried to secure a promise from Ghanbarzadeh that, if they paid restitution, she would say that she had mistakenly identified Eddie. Eddie’s relatives specifically conditioned an offer to pay Ghanbarzadeh on her “go[ing] to court and say[ing] it’s not [Eddie].” After continuing to try to convince Ghanbarzadeh that they would pay her only after she had retracted her statements made about Eddie, one of Eddie’s relatives explained that he had shot a man “that tried to cheat me” and that he had “put four bullets in him, and he’s hurt for the rest of his life.” After having listened to the conversation, the officers arrested Yogi, Jim, and their two relatives. Both Yogi and Jim were indicted for witness-tampering; the charges were later dismissed for reasons not shown by the record.

Section 36.05 of the Texas Penal Code, entitled “Tampering With Witness,” provides:

(a) A person commits an offense if, with intent to influence the witness, he offers, confers, or agrees to confer any benefit on a witness or prospective witness in an official proceeding or coerces a witness or prospective witness in an official proceeding:

(1) to testify falsely;

(2) to withhold any testimony, information, document, or thing;

(3) to elude legal process summoning him to testify or supply evidence;

(4) to absent himself from an official proceeding to which he has been legally summoned; or

(5) to abstain from, discontinue, or delay the prosecution of another.

Tex. Pen. Code § 36.05(a). “[A]pproaching” or “talking to” a witness does not violate the witness-tampering statute. Further, “[p]lacing statements in a draft affidavit that have not been previously discussed with a witness does not automatically constitute bad-faith conduct.” Resolution Trust Corp. v. Bright, 6 F.3d 336, 341 (5th Cir. 1993).

Yogi and Jim filed suit against Adamo, alleging legal malpractice as the sole theory of recovery. After having answered the suit, Adamo filed a motion for summary judgment, which was granted. Yogi and Jim appealed.

In Texas, lawyers are held to the standard of care that would be exercised by a reasonably prudent attorney in the same or similar circumstances. Zenith Star Ins. Co. v. Wilkerson, 150 S.W.3d 525, 530 (Tex. App.–Austin 2004, no pet.), citing Cosgrove v. Grimes, 774 S.W.2d 662, 664-65 (Tex. 1989). Thus, in a legal malpractice case, expert testimony is generally required to prove the standard of care and the breach of that standard. See id. at 530 (standard and breach); Longaker v. Evans, 32 S.W.3d 725, 735 (Tex. App.–San Antonio 2000, pet. withdrawn) (standard); Onwuteaka v. Gill, 908 S.W.2d 276, 281 (Tex. App.–Houston [1st Dist.] 1995, no writ) (breach).

The court of appeals found that Yogi and Jim’s summary judgment evidence failed to prove the standard of care and the breach of that standard:

The affidavits introduced by Yogi and Jim are silent regarding whether Adamo breached the standard of care. Yogi’s affidavit established that Adamo prepared a document for Ghanbarzadeh to sign and that Adamo represented that it was legal to approach Ghanbarzadeh. Jim’s affidavit stated that Adamo told him that any agreement with Ghanbarzadeh needed to be in writing and that Adamo’s assistant prepared the affidavit for Jim to present to Ghanbarzadeh. Jim said that he “assumed the prosecution ok’d” his talking to Ghanbarzadeh because Adamo was working with the prosecution to get Eddie’s charges dropped.

The record contains no evidence, expert or otherwise, that indicates whether Adamo breached the standard of care that would be exercised by a reasonably prudent attorney in the same or similar circumstances. The trial court therefore properly granted the no-evidence motion for summary judgment in favor of Adamo.