In Brennan v. Manning, No. 07-06-0041-CV, 2007 WL 1098476 (Tex. App.--Amarillo April 12, 2007), the court found that the professional services exemption barred a DTPA claim against a lawyer based on advice given in the course of a divorce proceeding.

Background Facts

In 1995, Lucia Brennan retained Manning and his law firm to represent her in a divorce proceeding against James Brennan. Brennan was an attorney specializing in personal injury litigation. At the time of the divorce, Lucia was aware that her husband received income from contingent fees and from the referral of cases to other attorneys. Lucia contended that during Manning's representation she received erroneous legal advice from him that caused her to receive an inadequate share of the marital estate. Specifically, she maintained that Manning incorrectly advised her that she was not entitled to an interest in any contingent or referral legal fees owed to her husband. She sued Manning and his law firm under the DTPA, among other claims.

Professional services exemption

The DTPA expressly exempts claims for damages based on the rendering of a professional service, the essence of which is the providing of advice, judgment, opinion, or similar professional skill. Tex. Bus. & Com. Code § 17.49(c). This exemption does not, however, apply to: (1) an express misrepresentation of a material fact that cannot be characterized as advice, judgment, or opinion; (2) a failure to disclose information in violation of § 17.46(b)(24); (3) an unconscionable action or course of action that cannot be characterized as advice, judgment, or opinion; (4) breach of an express warranty that cannot be characterized as advice, judgment, or opinion; or (5) a violation of § 17.46(b)(24).

The court held that the exemption barred the DTPA claims:

Appellant contends the professional services exemption is not applicable for two reasons: (1) Manning and the other Appellees failed to disclose information in violation of § 17.46(b)(24) and (2) the conduct of Manning and the other Appellees was unconscionable and could not be characterized as advice, judgment, or opinion. In the context of a summary judgment proceeding, a party relying on the professional services exemption has the burden to establish that exemption as a matter of law. Once established, the burden shifts to the party opposing summary judgment to establish the exception to the exemption. Head, 159 S.W.3d at 740; Palmer v. Enserch Corp., 728 S.W.2d 431, 435 (Tex. App.--Austin 1987, writ ref'd n.r.e.).

Appellant's claims are clearly based upon legal services provided to her by Manning and the other Appellees. The essence of those legal services was the providing of advice, judgment, opinion, or similar skill. As such, the professional services exception to the DTPA was raised by the evidence, thereby shifting the burden to Appellant to establish an exception to the exemption.

In order to establish the "failure to disclose" information in violation of § 17.46(b)(24) exception, the party must prove (1) the concealing-party knew something material about the goods or services being rendered (2) which was not disclosed (3) with the intent to induce the claimant-consumer into entering into a transaction, and (4) the claimant-consumer would not have entered into the transaction had the information been disclosed. Patterson v. McMickle, 191 S.W.3d 819, 827 (Tex. App.--Fort Worth 2006, no pet.).

Appellant produced no summary judgment evidence which would have shown that either Manning or the other Appellees knew that any of the advice given to Appellant was erroneous. Furthermore, she failed to produce any summary judgment evidence that would have established that the failure to disclose any erroneous advice was done so with the intent to induce her into entering into the divorce settlement reached, nor that she would not have entered into the agreement reached had the allegedly erroneous information been disclosed. Appellant, therefore, failed to establish the "failure to disclose" exception to the professional services exemption.

In order to establish the "unconscionable" exception to the professional services exemption, a consumer-complainant must establish that the complained of conduct was unconscionable. An unconscionable act is one that takes advantage of the lack of knowledge, ability, experience, or capacity of a person to a "grossly unfair degree," or which results in a gross disparity between the value received and consideration paid, in a transaction involving transfer of consideration. Tex. Bus. & Com.Code § 17.45(5). Unconscionable action requires a showing that the resulting unfairness was glaringly noticeable, flagrant, and unmitigated. Chastain v. Koonce, 700 S.W.2d 579, 584 (Tex.1985). Conduct simply showing the failure to exercise that degree of care, skill, and diligence that an attorney of ordinary skill and knowledge would have exercised under the same or similar circumstances does not equate to an unconscionable act in violation of the DTPA. See Latham v. Castillo, 972 S.W.2d 66, 68-69 (Tex.1998). Having reviewed Appellant's claim of unconscionability in light of the entire transaction, we find that Appellant's claims are best stated as simple negligence claims. It cannot be said that the alleged concealment of erroneous advice resulted in glaringly noticeable, flagrant, and unmitigated unfairness to Appellant in the attorney-client relationship. Accordingly, we find Appellant's summary judgment evidence did not establish the "unconscionable" exception to the professional services exemption.