No. 13-15-00042-CV

In the Thirteenth Court of Appeals

Corpus Christi, Texas

Belinda Lopez,

Appellant

v.

Santos Maldonado,

Appellee

On Appeal from Trial Court Case No. F-2820-10-E

275th District Court of Hidalgo County, Texas

Honorable Juan R. Partida

APPELLANT’S BRIEF

R. W. Armstrong

State Bar No. 01323500

The Armstrong Firm

2600 Old Alice Road, Suite A

Brownsville, Texas 78521

Telephone:(956) 546-5556

Telecopier: (956) 546-0470

COUNSEL FOR APPELLANT BELINDA LOPEZ

ORAL ARGUMENT REQUESTED

ACCEPTED

13-15-00042-CV

THIRTEENTH COURT OF APPEALS

CORPUS CHRISTI, TEXAS

7/20/2015 6:20:08 PM

CECILE FOY GSANGER

CLERK

 RECEIVED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 7/20/2015 6:20:08 PM CECILE FOY GSANGER Clerk
i

IDENTITY OF PARTIES AND COUNSEL

Appellant

Belinda Lopez R. W. Armstrong

State Bar No. 01323500

The Armstrong Firm

2600 Old Alice Road, Suite A

Brownsville, Texas 78521

Telephone:(956) 546-5556

Telecopier: (956) 546-0470

office@armstrong-firm.com

Special Counsel to the Armstrong Firm:

Tracia Y. Lee

State Bar No. 24013021

Tracia Y. Lee, P.L.L.C.

P.O. Box 171022

Austin, Texas 78717

Telephone: (512) 814-6167

Facsimile: (512) 271-6806

tlee@tleelaw.com

Appellee

Santos Maldonado Reynaldo L. Diaz, Jr.

Law Offices Of Reynaldo L. Diaz, Jr.

1615 Broadway

San Antonio, Texas 78215
ii

TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL............................................i

TABLE OF CONTENTS ..................................................................ii, iii

INDEX OF AUTHORITIES ............................................................. iv, v

STATEMENT REGARDING CITATIONS TO THE RECORD............v

STATEMENT OF THE CASE..............................................................1

ISSUE PRESENTED...........................................................................2

STATEMENT OF FACTS....................................................................2

SUMMARY OF THE ARGUMENT ......................................................7

ARGUMENT........................................................................................7

I. Review standard and burden of proof standard.........................8

A. This Court reviews the trial court’s summary judgment 

de novo .............................................................................8

B. Maldonado had the burden of proof to show his 

 entitlement to attorney’s fees and expenses.....................8

II. Maldonado is not entitled to summary judgment because he

failed to establish his entitlement to attorney’s fees and his 

contract is unenforceable as a matter of law .............................9

A. Maldonado did not submit any summary judgment

 evidence to support his motion .........................................9
iii

B. Maldonado is not entitled to 20% of Ms. Lopez’s 

 recovery because his own contract prohibits

 such a contingency fee ...................................................10

C. Maldonado is not entitled to reasonable

 attorney’s fees because he made no attempt

 to establish that his fees for representing 

 Ms. Lopez were reasonable............................................11

D. Maldonado did not establish that his alleged 

 expenses for representing Ms. Lopez were

 necessary or reasonable.................................................14

E. Maldonado is not entitled to a contingency

 fee because such fee is unconscionable ........................16

F. Because Maldonado’s contingency fee

 contract is unconscionable and against public 

 policy, it is unenforceable as a matter of law ...................16

PRAYER............................................................................................19

CERTIFICATE OF COMPLIANCE....................................................21

CERTIFICATE OF SERVICE............................................................21

APPENDIX ........................................................................................22
iv

INDEX OF AUTHORITIES

Cases

Arthur Andersen & Co. v. Perry Equip. Corp., 

945 S.W.2d 812 (Tex. 1997) .............................................................12

Barrow v. Jack's Catfish Inn, 641 S.W.2d 624 

(Tex. App.—Corpus Christi 1982, no writ).....................................9, 10

Bullock v. Foster Cathead Co., 631 S.W.2d 208

(Tex. App.—Corpus Christi 1982, no writ...................................12

Cruse v. O'Quinn, 273 S.W.3d 766

(Tex. App.—Houston [14th Dist.] 2008, pet. denied).........................18

Davis Law Firm v. Bates, 2014 WL 585855

(Tex. App.—Corpus Christi 2014, no pet.) ......................16, 17, 18, 19

Eggert v. Am. Standard Life Ins. Co., 404 S.W.2d 99

(Tex. Civ. App.—Corpus Christi 1966, no writ) .................................10

Great American Reserve Insurance Co. v. Britton,

406 S.W.2d 901 (Tex.1966)................................................12, 13

Hidalgo v. Sur. Sav. & Loan Ass'n, 462 S.W.2d 540

(Tex. 1971)........................................................................................10 

In re Plaza, 363 B.R. 517, 521-522 (Bankr. S.D. Tex. 2007) ............18

Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 

904 S.W.2d 656 (Tex. 1995) .............................................................10

MMP, Ltd. v. Jones, 710 S.W.2d 59 (Tex. 1986) ................................8

Ross v. Union Carbide Corp., 296 S.W.3d 206

(Tex. App.—Houston [14th Dist.] 2009, pet. denied).........................19

Ryland Group, Inc. v. Hood, 924 S.W.2d 120 (Tex. 1996)................14
v

Sanes v. Clark, 25 S.W.3d 800

(Tex. App.—Waco 2000, pet. denied)...............................................18

Valence Operating Co. v. Dorsett, 164 S.W.3d 656 (Tex. 2005) ........8

Rules

Texas Disciplinary Rule of Professional Conduct 1.02(a)(2).......17, 18

Texas Disciplinary Rule of Professional Conduct 1.04................11, 16

STATEMENT REGARDING CITATIONS TO THE RECORD

Appellant refers to the clerk’s record as “CR ____” and the 

supplemental clerk’s record, submitted by the trial court to this Court on 

July 20, 2015, as “SCR ____”.
1

STATEMENT OF THE CASE

Belinda Lopez filed for divorce from Erasmo Lopez on 

November 3, 2010. CR 9-19. On July 21, 2011, Ms. Lopez retained 

Intervenor Santos Maldonado, Jr. to represent her as her legal 

counsel during the divorce proceedings. CR 270-273; 288. She 

signed a contingency fee agreement with Maldonado. CR 270-273. 

When she discovered that Maldonado was negligent in performing his 

legal responsibilities to her by failing to provide information necessary 

for her to evaluate her case, she terminated their contract. CR 288-

291. 

Despite the breach of his contract and duty to her, Maldonado 

intervened in the divorce proceeding, asserting a Plea in Intervention 

seeking to collect his attorney’s fees and legal expenses he claims 

were incurred while representing Ms. Lopez. CR 58-60. Ms. Lopez 

responded by asserting a counterclaim against him for negligence 

and legal malpractice. CR 61-62.

Maldonado moved for summary judgment to recover his 

attorney’s fees. CR 266-267. Ms. Lopez moved for summary 

judgment to avoid paying his attorney’s fees under their contract due 

to his negligence and legal malpractice. CR 294-302. The trial court 
2

granted Maldonado’s motion (CR 325-326) but never ruled on Ms. 

Lopez’s motion. 

The order granting Maldonado’s summary judgment motion

orders Ms. Lopez to reimburse him $19,431.82 for expenses and to 

pay him the “owed contractual amount of 20% of her recovery 

received...” See CR 325. 

Ms. Lopez seeks review of the summary judgment granted to 

Maldonado. 

ISSUE PRESENTED

Maldonado is not entitled to summary judgment on his 

attorney’s fees or expenses because he failed to establish as a 

matter of law that he is entitled to recover attorney’s fees or expenses

from Ms. Lopez.

STATEMENT OF FACTS

On November 3, 2010, Ms. Lopez filed her Original Petition for 

Divorce against her husband, Erasmo Lopez. CR 9-19. 

On July 21, 2011, Ms. Lopez was referred to Santos 

Maldonado as an attorney who has family law experience and who 

could represent me in my divorce. CR 288.1 She retained him to 

																																																							 1 Maldonado did not object to any statements Ms. Lopez made in her affidavit.
3

represent her in the divorce proceedings. Id. Maldonado drafted the 

contingency fee contract, which he entitled “Contingent Contract of 

Employment,” and both parties signed it. Id.; CR 270-273. 

Maldonado advised Ms. Lopez to accept a settlement in the 

divorce proceeding, and the Lopezes’ respective attorneys dictated a 

purported agreement before a court reporter when the court was not 

in session. CR 288-291. However, Ms. Lopez later repudiated the 

agreement after discovering that Maldonado had failed to provide 

information necessary for her to evaluate her case and that he had 

advised her to accept a settlement that was not fair or proper to her. 

Id.

Prior to the court meeting, Ms. Lopez spoke with Maldonado 

about the valuations of the community property and specifically the 

house and furniture. Id. Even though the furniture had little value, 

Maldonado directed and advised her to accept the valuation of 

$150,000.00. Id. He also directed and advised her to accept the 

valuation of $400,000.00 for the community property house, instead 

of the Hidalgo County Appraised value of $219,000.00. Mr. Lopez 

wanted to value it at $400,000.00, and Maldonado directed and 

advised her to accept that value. Id. Although Ms. Lopez was the 
4

client, Maldonado always overruled her. Maldonado had no concern 

for Ms. Lopez’s opinions. Id.

Maldonado allowed Mr. Lopez to receive substantially most of 

the assets and certainly all the income earning assets. Id. After Ms. 

Lopez terminated Attorney Maldonado’s employment, she discovered 

that the promissory note Mr. Lopez gave to her as part of her

distribution was totally unsecured. Id. None of the assets awarded to 

Mr. Lopez were subject to a lien for performance of the promissory 

note in the principle amount of $365,000.00. Id. Ms. Lopez was 

shocked when she discovered that there was no security whatsoever,

and that the promissory notes was based solely on Mr. Lopez’s

naked promise that he would pay. Id.

Ms. Lopez also discovered that Maldonado had written in one 

of the proposed decrees that the payments from the promissory note 

mentioned above were to be paid directly to Maldonado. Id. 

Maldonado never discussed such self-dealing with Ms. Lopez at 

anytime, and she would not have agreed to this payment 

arrangement. Id.

Additionally, after Ms. Lopez terminated Maldonado, she was 

advised that she would have received a larger share of the 
5

community property if the court found fault against Mr. Lopez. Id. 

However, Maldonado never informed Ms. Lopez about this law. Id. 

Either he did not understand the law or chose not to inform her of this 

issue. Id. Ms. Lopez told Maldonado that Mr. Lopez had maintained 

several mistresses during their marriage and that she had personally 

confronted Mr. Lopez leaving a hotel in Brownsville, Texas with his 

girlfriend Joana Benavides, one week before she filed for divorce. Id. 

Ms. Lopez believed that Mr. Lopez was a serial adulterer, having one 

girl friend after another during our marriage. Id. However, Maldonado 

did not use this information to help Ms. Lopez obtain a larger 

proportion of the community assets. Id. Ms. Lopez did not know this 

law until after she had terminated Maldonado’s services. Id. 

Because Ms. Lopez believes that Maldonado has harmed her 

divorce case due to his incompetency, self-dealing, and refusal to 

listen to her, even though she was the client, Ms. Lopez asserted a 

claim of legal malpractice against Maldonado. Id.

The trial court ultimately entered a judgment based on the 

terms that Maldonado had recited to the court reporter at the 

aforementioned court meeting, which terms Ms. Lopez had 
6

repudiated. CR 164-202. Ms. Lopez is appealing that divorce decree.

CR 292-293.

The contract that Attorney Maldonado is attempting to enforce 

does not grant him the absolute right to recover a 20% contingency 

fee. CR 270-273. 

The “Contingent Contract of Employment” executed by the 

parties provides the following:

• Since Ms. Lopez terminated the contract, Maldonado is entitled 

to only “a reasonable fee pursuant to the factors and guidelines 

approved by the Supreme Court of Texas and in the Code of 

Professional Responsibility." CR 271.

• Ms. Lopez cannot settle her case without Maldonado’s consent:

Necessity for Attorney’s Consent to Settlement

Client will make no settlement of the claim herein, or accept any 

sum as reimbursement for any bodily injuries or expenses, 

without the Attorney’s consent. CR 272. 

• Ms. Lopez pays only reasonable and necessary expenses: “[A]ll 

costs, necessary disbursements, investigative fees, reasonable

personal expenses, as well as necessary expenses to prepare 
7

the case for settlement or trial... are to be paid by Client.” CR 

270.

At no point did Maldonado show Ms. Lopez any documentation 

that he spent $24,431.82 preparing her case for settlement or trial. 

CR 288-291. At no point did he show Ms. Lopez invoices, receipts, or 

other documentation substantiating his alleged expenses for her case 

or benefit. CR 288-291.

SUMMARY OF THE ARGUMENT

Maldonado is not entitled to summary judgment on his 

attorney’s fees or expenses because (1) since Ms. Lopez terminated 

his services, his own contract prohibits him from recovering a 20% 

contingency fee; (2) since Ms. Lopez terminated his services, his own

contract entitles him to only reasonable attorney’s fees, and he did 

not establish that his attorney’s fees are reasonable; and (3) his 

contingency fee contract is not enforceable under Texas law. 

Furthermore, Maldonado even admits in a pleading that his 

entitlement to attorney’s fees is a fact issue. 
8

ARGUMENT

I. Review standard and burden of proof standard

A. This Court reviews the trial court’s summary 

judgment de novo

The appeals court reviews the trial court's summary judgment 

de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 

(Tex. 2005). When reviewing a summary judgment, the appeals court 

takes as true all evidence favorable to the nonmovant, and indulges 

every reasonable inference and resolve any doubts in the 

nonmovant's favor. Id.

B. Maldonado had the burden of proof to show his 

entitlement to attorney’s fees and expenses

Because Maldonado was seeking affirmative relief, he had the 

burden of proof to establish he was entitled to relief as a matter of 

law. To be entitled to summary judgment on his own claim for 

affirmative relief, a movant must conclusively prove all essential 

elements of his claim. MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 

1986). The movant has the burden to show that there are no genuine 

issues of material fact and that movant is entitled to judgment as a 

matter of law. Id. Evidence favorable to the nonmovant will be taken 
9

as true and every reasonable inference must be indulged in 

nonmovant, and any doubts resolved in nonmovant’s favor. Id.

II. Maldonado is not entitled to summary judgment because 

he failed to establish his entitlement to attorney’s fees and 

his contract is unenforceable as a matter of law

On July 28, 2014, Maldonado filed his one-page motion for 

summary judgment to recover attorney’s fee. CR 266-274. In his onepage motion, Maldonado claims he is entitled to 20% of Ms. Lopez’s 

recovery in the divorce proceedings and that he incurred $24,431.822

in expenses for “developing the case.” CR 266. He attached the 

parties’ contingency fee contract (CR 270-273) and a document 

entitled “Belinda Lopez’ Case Expenses” (CR 274) to his motion. 

Maldonado did not authenticate either exhibit. Instead, he verified his 

motion. 

A. Maldonado did not submit any summary judgment to 

support his motion

Maldonado submitted no evidence at all to support his 

summary judgment motion, since his verified summary judgment 

motion is not summary judgment evidence. A motion for summary 

judgment is a pleading. Barrow v. Jack's Catfish Inn, 641 S.W.2d 

																																																							 2 Ms. Lopez paid Maldonado a $5,000.00 retainer.
10

624, 625 (Tex. App.—Corpus Christi 1982, no writ). Pleadings, such 

as factual statements in summary judgment motions, do not 

constitute competent summary judgment evidence, even if sworn or 

verified. Id.; Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 

S.W.2d 656, 660 (Tex. 1995); Hidalgo v. Sur. Sav. & Loan Ass'n, 462 

S.W.2d 540, 541 (Tex. 1971).

Because Maldonado failed to submit summary judgment 

evidence to support his motion, he does not even come close to

meeting his burden of proof to show his entitlement to attorney’s fees 

or expenses.

B. Maldonado is not entitled to 20% of Ms. Lopez’s 

recovery because his own contract prohibits such a 

contingency fee

Because Ms. Lopez terminated Maldonado, he cannot recover 

a 20% contingency fee under their contract.

It is the function of the court to construe and enforce the 

contract as it is written where the terms of the contract are plain and 

unambiguous. Eggert v. Am. Standard Life Ins. Co., 404 S.W.2d 99, 

104 (Tex. Civ. App.—Corpus Christi 1966, no writ) (citation omitted). 

The “Contingent Contract of Employment” plainly and unambiguously 

provides that if Maldonado withdraws or Ms. Lopez terminates the 
11

agreement, he "shall be entitled to a reasonable fee pursuant to the 

factors and guidelines approved by the Supreme Court of Texas and 

in the Code of Professional Responsibility." CR 271. There is no 

dispute that Ms. Lopez terminated their contract. Thus, even under 

the clear, plain, and unambiguous terms of Maldonado’s own 

agreement that he drafted, he is not entitled to recover the full 

contracted amount of 20% of Ms. Lopez’s recovery.

Thus, the trial court’s summary judgment ordering Ms. Lopez to 

pay Maldonado the “owed contractual amount of 20% of her recovery 

received...” (see CR 325) cannot possibly stand. 

C. Maldonado is not entitled to reasonable attorney’s 

fees because he made no attempt to establish that his 

fees for representing Ms. Lopez were reasonable

Because Ms. Lopez terminated the agreement, Maldonado’s 

contract permits him to recover only “a reasonable fee pursuant to the 

factors and guidelines approved by the Supreme Court of Texas and 

in the Code of Professional Responsibility," (CR 271), the fact finder

must consider these factors in determining the reasonableness of 

Maldonado’s fee, as set out by the Supreme Court of Texas, citing 

Texas Disciplinary Rule of Professional Conduct 1.04:
12

(1) the time and labor required, the novelty and 

difficulty of the questions involved, and the skill 

required to perform the legal service properly;

(2) the likelihood... that the acceptance of the 

particular employment will preclude other 

employment by the lawyer;

(3) the fee customarily charged in the locality for 

similar legal services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by 

the circumstances;

(6) the nature and length of the professional 

relationship with the client;

(7) the experience, reputation, and ability of the 

lawyer or lawyers performing the services; and

(8) whether the fee is fixed or contingent on results 

obtained or uncertainty of collection before the 

legal services have been rendered.

Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 

(Tex. 1997). 

Also, the reasonableness of attorney's fees is a question of fact 

and must be supported by competent evidence. Bullock v. Foster 

Cathead Co., 631 S.W.2d 208, 212 (Tex. App.—Corpus Christi 1982, 

no writ) (citing Great American Reserve Insurance Co. v. Britton, 406 

S.W.2d 901, 907 (Tex.1966)). A court does not have authority to 

adjudicate the reasonableness of attorney's fees on judicial 

knowledge without the benefit of evidence. Bullock, 631 S.W.2d at
13

212 (citing Great American Reserve Insurance Co., 406 S.W.2d at 

907). 

Here, because Ms. Lopez terminated the agreement, 

Maldonado must convince a fact finder that his fees are reasonable 

using the Arthur Andersen factors, in order to recover his fees. 

However, Maldonado made no attempt to show that his fees were 

reasonable. 

Maldonado proffered no testimony about his fees with his 

motion for summary judgment. See CR 266-274. Maldonado 

proffered no testimony about his fees with his untimely reply to Ms. 

Lopez’s response to his motion for summary judgment. See SCR 31-

35. (Maldonado filed his reply the day before the summary judgment 

hearing, so anything filed with his reply is untimely and cannot be 

considered by the Court.) 

In a document entitled “Billing Records Affidavit Pertaining to 

Belinda Lopez” that Maldonado attached to his untimely reply to Ms. 

Lopez’s response to his motion for summary judgment, Maldonado 

boldly states “The service I provided was and the amount that I 

charged for the service was reasonable at the time and place that the 

service was provided” with nothing to support his statement. See
14

SCR 35. Such a conclusory statement, with supporting facts, is not 

credible and is not proper summary judgment evidence. See e.g.

Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996) (citing 

Tex.R. Civ. P. 166a(c)). 

Maldonado even admits that his entitlement to attorney’s fees

and expenses is a fact issue. In his Response to Ms. Lopez’s Motion 

for No Evidence Motion for Summary Judgment, he states that 

“attached hereto... is an appendix containing affidavits, official court 

transcripts, and other documents setting forth summary judgment 

proof of the existence of a material fact concerning entitled[sic] of 

attorney fees and expenses pursuant to valid contract between 

Santos Maldonado and Belinda Lopez.” See CR 427.

Because Maldonado failed to show that his fees were 

reasonable, and he even admits that there is a genuine issue of 

material fact regarding his entitlement to attorney’s fees, he is not 

entitled to summary judgment awarding him attorney’s fees. 

D. Maldonado did not establish that his alleged 

expenses for representing Ms. Lopez were necessary 

or reasonable

Because Maldonado’s contract expressly provides that “[a]ll 

costs, necessary disbursements, investigative fees, reasonable
15

personal expenses, as well as necessary expenses to prepare the 

case for settlement or trial... are to be paid by Client” (See CR 270)

(emphasis added), and he failed to proffer evidence to establish his

alleged expenses were reasonable and necessary, he is not entitled 

to recover his such expenses.

To demonstrate his alleged expenses, Maldonado relies on a 

document entitled “Belinda Lopez’ Case Expenses.” However, the 

“Belinda Lopez’ Case Expenses” document contains inadmissible 

hearsay, and inadmissible, unsubstantiated, and conclusory 

statements. He is not entitled to recover his expenses simply 

because he says so; he must proffer competent, admissible evidence 

to show that his expenses are reasonable and necessary. However,

Maldonado made no attempt to show that any of the expenses listed 

in the “Belinda Lopez’ Case Expenses” document are reasonable or 

necessary. The document does not even include enough description 

for each fee item to allow a fact-finder or Ms. Lopez to evaluate 

whether a particular fee is reasonable or necessary. 

Because no competent evidence supports the necessity or 

reasonableness of the expenses Maldonado claims he incurred for 
16

representing Ms. Lopez, he is not entitled to recover those alleged 

expenses. 

E. Maldonado is not entitled to a contingency fee 

because such fee is unconscionable

Additionally, Maldonado cannot recover a 20% contingency fee 

because his incompetent representation of Ms. Lopez makes such a 

fee unconscionable. “A fee is unconscionable if a competent lawyer 

could not form a reasonable belief that the fee is reasonable.” Davis 

Law Firm v. Bates, 2014 WL 585855, *4 (Tex. App.—Corpus Christi 

2014, no pet.) (citing Tex. Disciplinary R. Prof'l Conduct 1.04(a)). 

Here, because the evidence shows that Maldonado did not 

competently represent Ms. Lopez, no competent lawyer could form a 

reasonable belief that Maldonado is entitled to 20% of Ms. Lopez’s 

discovery. 

F. Because Maldonado’s contingency fee contract is 

unconscionable and against public policy, it is 

unenforceable as a matter of law

Furthermore, the “Contingent Contract of Employment” is void

because it has a clause prohibiting settlement without Maldonado’s

consent, in violation of Texas Disciplinary Rule of Professional 
17

Conduct 1.02(a)(2). Specifically, the “Contingent Contract of 

Employment” states: 

Necessity for Attorney’s Consent to Settlement

Client will make no settlement of the claim herein, or 

accept any sum as reimbursement for any bodily injuries 

or expenses, without the Attorney’s consent. 

CR 272. 

A provision forbidding Ms. Lopez to settle her claim without 

Maldonado’s consent is unenforceable. The parties’ contract in this 

case is similar to the one in Davis Law Firm v. Bates, 2014 WL 

585855 (Tex. App.—Corpus Christi 2014, no pet.), where this Court 

concluded that a client can void a contingency fee contract that 

requires attorney consent to settle a claim. This Court acknowledged 

that Texas Disciplinary Rule of Professional Conduct 1.02(a)(2) 

requires an attorney to “abide by a client's decision” regarding 

whether to accept a settlement offer and that Comment 5 following 

the rule provides, in pertinent part: “An agreement concerning the 

scope of representation must accord with the Disciplinary Rules of 

Professional Conduct and other law. Thus, the client may not be 

asked ... to surrender ... the right to settle or continue litigation that 

the lawyer might wish to handle differently.” Id. at 3 (also citing In re 
18

Plaza, 363 B.R. 517, 521-522 (Bankr. S.D. Tex. 2007) (determining 

that “clauses in a contract between attorney and client which prohibit 

a settlement by the client without his attorney's consent are generally 

held to be unenforceable as against public policy”) and Sanes v. 

Clark, 25 S.W.3d 800, 805 (Tex.App.—Waco 2000, pet. denied) 

(determining that contingent fee contract authorizing attorney to settle 

clients' claims without consultation with clients was voidable by 

clients because it violated rule 1.02(a)(2)). 

This Court concluded that a provision stating “neither Client nor 

Attorney will make a settlement of the claim herein or accept any sum 

without consent of the other....” violates rule 1.02(a)(2) and is 

unenforceable as against public policy. Davis Law Firm, 2014 WL 

585855 at *3 (also citing Cruse v. O'Quinn, 273 S.W.3d 766, 775 

(Tex.App.—Houston [14th Dist.] 2008, pet. denied) (holding that “a 

court may deem [the Disciplinary Rules] to be an expression of public 

policy, so that a contract violating them is unenforceable as against 

public policy”)). This Court concluded in Davis Law Firm that the 

attorney was not entitled to collect a contingency fee. Davis Law 

Firm, 2014 WL 585855 at *3. 
19

This Court is bound by its holding in Davis Law Firm. Absent a 

decision from a higher court or the same court sitting en banc that is 

on point and contrary to the prior panel decision or an intervening and 

material change in the statutory law, this court is bound by the prior 

holding of another panel of this court. Ross v. Union Carbide Corp., 

296 S.W.3d 206, 221 (Tex. App.—Houston [14th Dist.] 2009, pet. 

denied).

PRAYER

Because Maldonado did not establish as a matter of law that he 

is entitled to recover attorney’s fees or expenses in the divorce 

proceeding, and his contingency fee contract is not enforceable under 

Texas law, he is not entitled to summary judgment. Thus, this Court 

must reverse the summary judgment. 
20

RESPECTFULLY SUBMITTED,

THE ARMSTRONG FIRM

2600 Old Alice Road, Suite A

Brownsville, Texas 78521

Telephone:(956) 546-5556

Telecopier: (956) 546-0470

 /s/ R. W. Armstrong

R. W. Armstrong

State bar No. 01323500

ATTORNEYS FOR APPELLANT 

BELINDA LOPEZ

SPECIAL COUNSEL TO THE 

ARMSTRONG FIRM:

TRACIA Y. LEE, P.L.L.C.

Tracia Y. Lee

State Bar No. 24013021

P.O. Box 171022

Austin, Texas 78717

Telephone: (512) 814-6167

Facsimile: (512) 271-6806
21

CERTIFICATE OF COMPLIANCE

I certify that I drafted Appellant’s Brief using Microsoft Word for 

Mac 2011 using Arial 14-point font for the text and 12-point font for 

footnotes and that the Brief contains 3425 words. 

 /s/ Tracia Y. Lee

Tracia Y. Lee

CERTIFICATE OF SERVICE

I certify that on this 20th day of July, 2015, a true and correct 

copy of Appellant’s Brief was served on the following counsel of 

record via facsimile, in accordance with the Texas Rules of Civil 

Procedure:

 /s/ Tracia Y. Lee

Tracia Y. Lee
22

No. 13-15-00042-CV

In the Thirteenth Court of Appeals

Corpus Christi, Texas

Belinda Lopez,

Appellant

v.

Santos Maldonado,

Appellee

APPELLANT’S APPENDIX

LIST OF DOCUMENTS

ITEM 1 Davis Law Firm v. Bates, 2014 WL 585855

(Tex. App.—Corpus Christi 2014, no pet.)

ITEM 2 Texas Disciplinary Rule of Professional Conduct 

1.02(a)(2)

ITEM 3 Texas Disciplinary Rule of Professional Conduct 

1.04
No. 13-15-00042-CV

Belinda Lopez,

Appellant

v.

Santos Maldonado,

Appellee

ITEM 1

Davis Law Firm v. Bates, 2014 WL 585855

(Tex. App.—Corpus Christi 2014, no pet.)
Davis Law Firm v. Bates, Not Reported in S.W.3d (2014)

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Synopsis

Background: Law firm brought action against former client

and her insurer seeking to contingent fee payment. The

County Court at Law, Cameron County, granted defendants

summary judgment. Law firm appealed.

Holdings: The Court of Appeals, Garza, J., held that:

[1] contingency fee contract that required client to obtain

attorney's consent to settle was unenforceable as against

public policy, and

[2] assuming unconscionable provision in contract was

severable, law firm was not entitled to enforcement of the

agreement because charging a $70,000 fee for no legal

services performed was an unconscionable fee.

Affirmed.

West Headnotes (2)

[1] Attorney and Client

Requisites and Validity of Contract

Contingency fee contract that required client to

obtain attorney's consent to settle violated rule

of professional conduct requiring an attorney to

abide by a client's decision, and thus, contract

was unenforceable as against public policy. State

Bar Rules, V.T.C.A., Government Code Title

2, Subtitle G App. A, Art. 10, § 9, Rules of

Prof.Conduct, Rule 1.02(a)(2).

Cases that cite this headnote

[2] Attorney and Client

Requisites and Validity of Contract

Assuming that the provision in contingency

fee contract prohibiting settlement without

attorney's consent was severable, law firm was

not entitled to enforcement of the agreement

because charging a $70,000 fee for no legal

services performed was an unconscionable fee;

law firm did not identify any legal services it

performed on client's behalf in the 24 hours

or less that it represented her, and client was

interviewed by a firm employee and did not at

any time meet or consult with an attorney from

the firm. State Bar Rules, V.T.C.A., Government

Code Title 2, Subtitle G App. A, Art. 10, § 9,

Rules of Prof.Conduct, Rule 1.04(a).

2 Cases that cite this headnote

On appeal from the County Court at Law No. 2 of Cameron

County, Texas.

Attorneys and Law Firms

Jeff Small, Mark Anthony Acuna, for the Davis Law Firm.

Roger W. Hughes, Tom Lockhart, for James Bates and

Consumers County Mutual Insurance Company.

Before Justices RODRIGUEZ, GARZA, and PERKES.

MEMORANDUM OPINION

Memorandum Opinion by Justice GARZA.

*1 By several issues, appellant, the Davis Law Firm

(“Davis”), contends the trial court erred in granting summary

judgment in favor of appellees, James Bates and Consumers

County Mutual Insurance Company (“Consumers”), and in

denying Davis's motion for summary judgment. We affirm.
Davis Law Firm v. Bates, Not Reported in S.W.3d (2014)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

I. BACKGROUND

On January 15, 2008, Marta Tapia and Bates were involved

in an automobile accident in Brownsville, Texas. Tapia

sued Bates for injuries sustained in the accident. Consumers

defended Bates and, in May 2009, paid $200,000.00 to Tapia

in settlement of her claims against Bates.

Either the same day as the accident or the following day,

Tapia visited Davis's Brownsville office. Tapia spoke with a

Davis staff employee and signed a contingency fee contract.

The agreement provided for Davis to receive a thirtyfive percent (35%) contingency fee of any amount Tapia

recovered before filing suit. After leaving Davis's office,

Tapia felt uncomfortable and that she had not been treated

with consideration. A family friend called to check on her and

recommended that she retain Javier Villarreal to represent her.

The following day, Tapia visited Villarreal's office and asked

that he represent her. Tapia told Villarreal that she had signed

a contingency fee agreement with Davis. Villarreal prepared

a letter for her signature advising Davis that she did not want

to retain the firm's services. The letter was faxed to Davis's

office that day. 1

In February 2008, Davis advised Bates's insurer, Travelers

Insurance, 2 that Tapia had released Davis from representing

her, but that Davis retained its interest in the claim. The

letter requested that Davis be included in any settlement

check regarding Tapia's claims. In December 2009, after

the settlement, Davis sent a demand letter to Travelers

demanding payment of its fee in the amount of 33.3 percent

of the settlement amount.

Davis sued Bates and Consumers for interference with a

contract, conversion, and enforcement of its fee agreement. 3

Bates and Consumers each filed a traditional motion for

summary judgment, asserting that they were entitled to

summary judgment on grounds that: (1) the contingency

fee contract was unconscionable as a matter of law and

unenforceable because it required Davis's consent to any

settlement in violation of Texas Disciplinary Rule of

Professional Conduct 1.02(a)(2), see TEX. DISCIPLINARY

R. PROF'L CONDUCT 1.02(a)(2), reprinted in TEX. GOV'T

CODE ANN. tit. 2, subtit. G, app. A (West 2013) (Tex.

State Bar R. art. X, § 9), and therefore, that the agreement

was voidable pursuant to government code section 82.065(b),

see Tex. Gov't Code Ann. § 82.065(b) (West 2013); and

(2) Davis's attempt to collect a $70,000 fee for no useful

services to Tapia was an attempt to collect an unconscionable

fee. Consumers and Bates also asserted that Davis's tortious

interference and conversion claims failed as a matter of law

because: (1) Tapia properly canceled the fee agreement before

the alleged interference; and (2) Davis had no right to possess

the funds at the time of the alleged conversion. 4

*2 Consumers attached the following evidence to its

traditional motion for summary judgment: (1) excerpts

from Tapia's deposition testimony; (2) Davis's responses to

Consumers's discovery requests; and (3) an affidavit and

report prepared by Frank Costilla, a Brownsville attorney,

regarding the unconscionability of Davis's claim to the

$70,000 fee. 5

Davis also filed a traditional motion for summary judgment

asserting that: (1) Tapia lacked good cause to discharge

Davis; (2) Consumers was liable to Davis for the amount

of the fee because it had notice of Davis's interest in the

$70,000 fee; and (3) even if a provision of the contingency fee

contract was unconscionable, the trial court erred in failing

to eliminate the unconscionable provision and to enforce

the remaining provisions of the contract. Davis attached

the following summary judgment evidence: (1) Tapia's

deposition testimony; (2) the contingent fee agreement; (3)

the February 2008 letter from Davis to Consumers; (4) the

deposition of William Edwards 6 ; (5) a copy of the settlement

agreement; and (6) a copy of the settlement check.

Consumers and Bates filed objections to Edwards's deposition

testimony and affidavit on grounds that Edwards offered

opinions on questions of law, failed to employ the correct

legal standard, and that his opinions were speculative and

conclusory. The trial court overruled Davis's objections to

Consumers's and Bates's evidence, denied Davis's motion,

sustained Consumers' and Bates's objections to Davis's

evidence, and granted Consumers's and Bates's motions

without stating the basis for its ruling.

II. STANDARD OF REVIEW

AND APPLICABLE LAW

In a summary judgment case, the movant must show that

there is no genuine issue of material fact and that the

movant is entitled to judgment as a matter of law. TEX.R.
Davis Law Firm v. Bates, Not Reported in S.W.3d (2014)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

CIV. P. 166a(c); Provident Life & Acc. Ins. Co. v. Knott,

128 S.W.3d 211, 215–16 (Tex.2003). The movant has the

burden of proof. Sw. Elec. Power Co. v. Grant, 73 S.W.3d

211, 215 (Tex.2002); City of Houston v. Clear Creek Basin

Auth., 589 S.W.2d 671, 678 (Tex.1979). A defendant who

conclusively negates at least one essential element of the

plaintiff's cause of action, or who conclusively establishes

all of the elements of an affirmative defense, is entitled

to summary judgment. Frost Nat'l Bank v. Fernandez, 315

S.W.3d 494, 508 (Tex.2010). The burden to raise a fact

issue shifts to the non-movant only after the movant has

established that it is entitled to summary judgment as a

matter of law. Rhone–Poulenc, Inc. v. Steel, 997 S.W.2d

217, 222 (Tex.1999); Casso v. Brand, 776 S.W.2d 551, 556

(Tex.1989).

We review a traditional motion for summary judgment de

novo. Frost Nat'l Bank, 315 S.W.3d at 508. To determine if

the non-movant raised a fact issue, we review the evidence

in the light most favorable to the non-movant, crediting

favorable evidence if reasonable jurors could do so and

disregarding contrary evidence unless reasonable jurors could

not. See Mann Frankfort Stein & Lipp Advisors, Inc. v.

Fielding, 289 S.W.3d 844, 848 (Tex.2009).

*3 When both sides move for summary judgment, and the

trial court grants one and denies the other, we review both

sides' evidence and determine all questions presented. See

FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868,

872 (Tex.2000); Lumbreras v. Rocha, No. 13–10–00459–CV,

2012 WL 29215, at *1 (Tex.App.-Corpus Christi Jan.5, 2012,

no pet.) (mem.op.). The reviewing court must then render

the judgment that the trial court should have rendered. See

FM Props. Operating Co., 22 S.W.3d at 872. “When a trial

court's order granting summary judgment does not specify

the grounds relied upon, the reviewing court must affirm

summary judgment if any of the summary judgment grounds

are meritorious.” Id.

III. DISCUSSION

Davis characterizes its issues as follows: (1) the trial court

erred by granting summary judgment in favor of Bates and

Consumers and by denying summary judgment in Davis's

favor; (2) Consumers had no standing to challenge the validity

of the contingency fee contract; 7 (3) Davis was entitled

to collect its contingency fee because Tapia terminated the

agreement without good cause and Consumers knew of

Davis's fee interest; (4) Consumers failed to prove that the

contingency fee contract was unconscionable at the time of its

formation; and (5) even if the clause requiring Davis's consent

to settlement was invalid, the trial court erred in failing to

sever the invalid clause and in failing to enforce the remainder

of the contract.

A. The Summary Judgment Motions

[1] Bates and Consumers moved for summary judgment

on the ground that the contingency fee agreement was

voidable by Tapia because it included a clause prohibiting

settlement without Davis's consent in violation of Texas

Disciplinary Rule of Professional Conduct 1.02(a)(2). See

TEX. DISCIPLINARY R. PROF'L CONDUCT 1.02(a)(2).

Rule 1.02(a)(2) requires an attorney to “abide by a client's

decision” regarding whether to accept a settlement offer. Id.

Comment 5 following the rule provides, in pertinent part:

“An agreement concerning the scope of representation must

accord with the Disciplinary Rules of Professional Conduct

and other law. Thus, the client may not be asked ... to

surrender ... the right to settle or continue litigation that the

lawyer might wish to handle differently.” Id. cmt. 5; see In re

Plaza, 363 B.R. 517, 521–22 (2007) (“Clauses in a contract

between attorney and client which prohibit a settlement by

the client without his attorney's consent are generally held to

be unenforceable as against public policy.”) (quoting Lewis

v. S.S. Baume, 534 F.2d 1115, 1122 (5th Cir.1976)); Sanes

v. Clark, 25 S.W.3d 800, 805 (Tex.App.-Waco 2000, pet.

denied) (holding that contingent fee contract authorizing

attorney to settle clients' claims without consultation with

clients was voidable by clients because it violated rule 1.02(a)

(2)). Here, the contingency fee contract required Tapia to

obtain Davis's consent to settle (“Neither Client nor Attorney

will make a settlement of the claim herein or accept any

sum without consent of the other....”). We conclude that the

provision violates rule 1.02(a)(2) and is unenforceable as

against public policy. See TEX. DISCIPLINARY R. PROF'L

CONDUCT 1.02(a)(2) cmt. 5; In re Plaza, 363 B.R. at 521–

22; Sanes, 25 S.W.3d at 805; see also Cruse v. O'Quinn, 273

S.W.3d 766, 775 (Tex.App.-Houston [14th Dist.] 2008, pet.

denied) (holding that “a court may deem [the Disciplinary

Rules] to be an expression of public policy, so that a contract

violating them is unenforceable as against public policy”).

We hold that the trial court did not err in granting summary

judgment in favor of Bates and Consumers on this basis.

*4 In its motion, Davis argued that it was entitled to

summary judgment because Consumers had notice of Davis's

claim to the 35% contingency fee, but Consumers nonetheless
Davis Law Firm v. Bates, Not Reported in S.W.3d (2014)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

failed to protect the firm's interest. Davis argues that

Consumers is therefore liable for the $70,000 fee. Davis

also argues that in determining whether a 35% fee is

unconscionable, we should look to the circumstances at the

time the parties executed the agreement, “rather than using

hindsight to see what work was actually done on the case.”

We are unpersuaded by Davis's arguments. We have

already determined that because the contingent fee

agreement prohibited settlement without Davis's consent,

it was unenforceable as against public policy. See TEX.

DISCIPLINARY R. PROF'L CONDUCT 1.02(a)(2) cmt.

5; In re Plaza, 363 B.R. at 521–22; Sanes, 25 S.W.3d at

805. Moreover, Tapia properly terminated the agreement less

than twenty-four hours after she signed the agreement. It

is undisputed that Tapia terminated the agreement before

she met or consulted with any attorney at the Davis firm.

Davis has not identified any legal work that it performed

on Tapia's behalf. “Public policy strongly favors a client's

freedom to employ a lawyer of his choosing and, except

in some instances where counsel is appointed, to discharge

the lawyer during the representation for any reason or

no reason at all.” Hoover Slovacek LLP v. Walton, 206

S.W.3d 557, 562 (Tex.2006); see TEX. DISCIPLINARY

R. PROF'L CONDUCT 1.15 cmt. 4 (“A client has the

power to discharge a lawyer at any time, with or without

cause, subject to liability for payment for the lawyer's

services....”). Regardless, because the trial court could have

properly determined that the contingency fee contract was

unenforceable as against public policy, it did not err in

denying Davis's motion for summary judgment. We overrule

Davis's first issue.

By its second issue, Davis contends that neither Bates

nor Consumers had standing to step into Tapia's shoes

and challenge the validity of her contingency fee contract

with Davis. We agree with Consumers and Bates that

Davis's standing argument is irrelevant and without merit.

Davis is only entitled to its 35% contingency fee if the

contract is enforceable, and we have determined that it was

unenforceable as against public policy. We overrule Davis's

second issue.

By its third issue, Davis contends it was entitled to collect its

contingency fee because Tapia terminated her agreement with

Davis without good cause. By its fourth issue, it contends that

Consumers has not shown that the 35% contingency fee was

unconscionable at the time Tapia signed the agreement. We

have already determined that the agreement is unenforceable

as against public policy and that Davis was therefore not

entitled to the fee. We overrule Davis's third and fourth issues

as moot.

B. Severability of Unconscionable Provision

[2] By its fifth issue, Davis argues that even if the provision

prohibiting settlement without its consent is invalid, the

provision is severable and the remainder of the agreement is

enforceable. Davis cites Hoover Slovacek in support of the

principle that if a term within a contract is unconscionable

at the time the contract is made, a court may enforce the

remainder of the contract or may limit the application of

the objectionable clause. See 206 S.W.3d at 565 (holding

that a termination fee provision was unconscionable, but that

remainder of the fee agreement was enforceable). Assuming,

without deciding, that the provision prohibiting settlement

without Davis's consent was severable, we nonetheless

conclude that Davis is not entitled to enforcement of the

agreement because charging a $70,000 fee for no legal

services performed is an unconscionable fee. “A fee is

unconscionable if a competent lawyer could not form a

reasonable belief that the fee is reasonable.” Tex. Disciplinary

R. Prof'l Conduct 1.04(a). Here, Davis has not identified any

legal services it performed on Tapia's behalf in the twentyfour hours or less that it represented her. As noted, Tapia was

interviewed by a Davis employee and did not at any time meet

or consult with a lawyer from the Davis firm. Thus, even if we

assume, without deciding, that Davis was discharged without

cause, its right to seek compensation in quantum meruit or

in a suit to enforce the contract is subject to the prohibition

against charging or collecting an unconscionable fee. See id.;

Hoover Slovacek, 206 S.W.3d at 561. We conclude that Davis

is not entitled to enforcement of the remainder of the contract.

We overrule Davis's fifth issue.

IV. CONCLUSION

*5 We affirm the trial court's judgment.

All Citations

Not Reported in S.W.3d, 2014 WL 585855
Davis Law Firm v. Bates, Not Reported in S.W.3d (2014)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5

Footnotes

1 We note that the contingency fee agreement and the letter to Davis are both dated the same day, January 16, 2008.

2 Although the record does not explain the relationship between Travelers and Consumers, we note that Davis's Third

Amended Petition refers to Davis's notice and demand letters as having been sent to Consumers.

3 Davis's Third Amended Petition states that it brings its suit “by and through” its former client, Tapia.

4 We note that Bates's and Consumers's motions for summary judgment asserted the same grounds and relied on the

same evidence except that Bates's motion also asserted that: (1) Davis named Bates as a party but did not assert that

he did anything wrong; and (2) Davis did not request issuance of citation and service on Bates until four months after the

statute of limitations had expired on all claims against Bates. Because we conclude that the trial court properly granted

summary judgment on grounds asserted by both parties, we address Bates's and Consumers's motions together.

5 Bates's motion attached the excerpts of Tapia's deposition testimony and Davis's discovery responses.

6 William Edwards, a personal injury litigator and Davis's retained expert, stated in his deposition testimony that the fee

agreement was not unconscionable because the 35% fee was fair when Tapia signed the agreement.

7 Davis asserts that neither Consumers nor Bates had “standing” to challenge Tapia's contingency fee contract with Davis.

“[S]tanding focuses on the question of who may bring an action.” The M.D. Anderson Cancer Ctr. v. Novak, 52 S.W.3d

704, 708 (Tex.2001) (quoting Patterson v. Planned Parenthood, 971 S.W.2d 439, 442 (Tex.1998)); see Nootsie, Ltd.

v. Williamson County Appraisal Dist., 925 S.W.2d 659, 661 (Tex.1996) (“A plaintiff has standing when it is personally

aggrieved.”). “Questions of standing turn upon the status of the plaintiff rather than the status of the defendant.” Robinson

v. Neeley, 192 S.W.3d 904, 912 (Tex.App.-Dallas 2006, no pet.). Here, Davis, the plaintiff, sued Bates and Consumers,

and then challenged their standing. We conclude Davis's second issue is without merit, and we overrule it.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
No. 13-15-00042-CV

Belinda Lopez,

Appellant

v.

Santos Maldonado

Appellee

ITEM 2

Texas Disciplinary Rule of Professional Conduct 1.02(a)(2)
Rule 1.02. Scope and Objectives of Representation, TX ST RPC Rule 1.02

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

	

		

			

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(a) Subject to paragraphs (b), (c), (d), and (e), (f), and (g), a lawyer shall abide by a client's decisions:

(1) concerning the objectives and general methods of representation;

(2) whether to accept an offer of settlement of a matter, except as otherwise authorized by law;

(3) In a criminal case, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial, and whether

the client will testify.

(b) A lawyer may limit the scope, objectives and general methods of the representation if the client consents after consultation.

(c) A lawyer shall not assist or counsel a client to engage in conduct that the lawyer knows is criminal or fraudulent. A lawyer

may discuss the legal consequences of any proposed course of conduct with a client and may counsel and represent a client in

connection with the making of a good faith effort to determine the validity, scope, meaning or application of the law.

(d) When a lawyer has confidential information clearly establishing that a client is likely to commit a criminal or fraudulent

act that is likely to result in substantial injury to the financial interests or property of another, the lawyer shall promptly make

reasonable efforts under the circumstances to dissuade the client from committing the crime or fraud.

(e) When a lawyer has confidential information clearly establishing that the lawyer's client has committed a criminal or

fraudulent act in the commission of which the lawyer's services have been used, the lawyer shall make reasonable efforts under

the circumstances to persuade the client to take corrective action.

(f) When a lawyer knows that a client expects representation not permitted by the rules of professional conduct or other law,

the lawyer shall consult with the client regarding the relevant limitations on the lawyer's conduct.
Rule 1.02. Scope and Objectives of Representation, TX ST RPC Rule 1.02

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

(g) A lawyer shall take reasonable action to secure the appointment of a guardian or other legal representative for, or seek other

protective orders with respect to, a client whenever the lawyer reasonably believes that the client lacks legal competence and

that such action should be taken to protect the client.

Credits

Adopted by order of Oct. 17, 1989, eff. Jan. 1, 1990.

<The original Rules Governing the State Bar of Texas, consisting of former

articles 1 to 13, were approved by the Supreme Court February 22, 1940.>

<Articles 1 through 9 of the State Bar Rules were adopted and former articles 1 through 11 of the Rules

Governing the State Bar of Texas were repealed by Order of the Texas Supreme Court dated March 14, 1983.>

<Article 10 of the State Bar Rules was adopted and article 12, §§ 1 to 7 and 9 to 36, as well as

article 13, of the Rules Governing the State Bar were repealed by Order of the Texas Supreme

Court dated February 29, 1984, effective March 1, 1984. That same order also restated and

continued article 12, § 8, of the Rules Governing the State Bar (the Texas Code of Professional

Responsibility) and promulgated such art. 12, § 8 as article 10, § 9, of the State Bar Rules.>

<Article 11 of the State Bar Rules was adopted by order of the Texas Supreme Court dated May 9, 1984.>

<Article 12 of the State Bar Rules, effective June 1, 1986, was adopted

by order of the Texas Supreme Court dated December 19, 1985.>

<Article 13 of the State Bar Rules, effective May 15, 1988, was

adopted by order of the Texas Supreme Court dated March 14, 1988.>

Editors' Notes

COMMENT:

2013 Main Volume

Scope of Representation

1. Both lawyer and client have authority and responsibility in the objectives and means of representation. The client has ultimate

authority to determine the objectives to be served by legal representation, within the limits imposed by law, the lawyer's

professional obligations, and the agreed scope of representation. Within those limits, a client also has a right to consult with

the lawyer about the general methods to be used in pursuing those objectives. The lawyer should assume responsibility for the

means by which the client's objectives are best achieved. Thus, a lawyer has very broad discretion to determine technical and

legal tactics, subject to the client's wishes regarding such matters as the expense to be incurred and concern for third persons

who might be adversely affected.

2. Except where prior communications have made it clear that a particular proposal would be unacceptable to the client, a lawyer

is obligated to communicate any settlement offer to the client in a civil case; and a lawyer has a comparable responsibility with

respect to a proposed plea bargain in a criminal case.

3. A lawyer should consult with the client concerning any such proposal, and generally it is for the client to decide whether or

not to accept it. This principle is subject to several exceptions or qualifications. First, in class actions a lawyer may recommend
Rule 1.02. Scope and Objectives of Representation, TX ST RPC Rule 1.02

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

a settlement of the matter to the court over the objections of named plaintiffs in the case. Second, in insurance defense cases a

lawyer's ability to implement an insured client's wishes with respect to settlement may be qualified by the contractual rights of

the insurer under its policy. Finally, a lawyer's normal deference to a client's wishes concerning settlement may be abrogated

if the client has validly relinquished to a third party any rights to pass upon settlement offers. Whether any such waiver is

enforceable is a question largely beyond the scope of these rules. But see comment 5 below. A lawyer reasonably relying on

any of these exceptions in not implementing a client's desires concerning settlement is, however, not subject to discipline under

this Rule.

Limited Scope of Representation

4. The scope of representation provided by a lawyer may be limited by agreement with the client or by the terms under which the

lawyer's services are made available to the client. For example, a retainer may be for a specifically defined objective. Likewise,

representation provided through a legal aid agency may be subject to limitations on the types of cases the agency handles.

Similarly, when a lawyer has been retained by an insurer to represent an insured, the representation may be limited to matters

related to the insurance coverage. The scope within which the representation is undertaken also may exclude specific objectives

or means, such as those that the lawyer or client regards as repugnant or imprudent.

5. An agreement concerning the scope of representation must accord with the Disciplinary Rules of Professional Conduct and

other law. Thus, the client may not be asked to agree to representation so limited in scope as to violate Rule 1.01, or to surrender

the right to terminate the lawyer's services or the right to settle or continue litigation that the lawyer might wish to handle

differently.

6. Unless the representation is terminated as provided in Rule 1.15, a lawyer should carry through to conclusion all matters

undertaken for a client. If a lawyer's representation is limited to a specific matter or matters, the relationship terminates when

the matter has been resolved. If a lawyer has represented a client over a substantial period in a variety of matters, the client may

sometimes assume that the lawyer will continue to serve on a continuing basis unless the lawyer gives notice to the contrary.

Doubt about whether a client-lawyer relationship still exists should be clarified by the lawyer, preferably in writing, so that

the client will not mistakenly suppose the lawyer is looking after the client's affairs when the lawyer has ceased to do so. For

example, if a lawyer has handled a judicial or administrative proceeding that produced a result adverse to the client but has

not been specifically instructed concerning pursuit of an appeal, the lawyer should advise the client of the possibility of appeal

before relinquishing responsibility for the matter.

Criminal, Fraudulent and Prohibited Transactions

7. A lawyer is required to give an honest opinion about the actual consequences that appear likely to result from a client's

conduct. The fact that a client uses advice in a course of action that is criminal or fraudulent does not, of itself, make a lawyer

a party to the course of action. However, a lawyer may not knowingly assist a client in criminal or fraudulent conduct. There

is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means

by which a crime or fraud might be committed with impunity.

8. When a client's course of action has already begun and is continuing, the lawyer's responsibility is especially delicate. The

lawyer may not reveal the client's wrongdoing, except as permitted or required by Rule 1.05. However, the lawyer also must

avoid furthering the client's unlawful purpose, for example, by suggesting how it might be concealed. A lawyer may not continue

assisting a client in conduct that the lawyer originally supposes is legally proper but then discovers is criminal or fraudulent.

Withdrawal from the representation, therefore, may be required. See Rule 1.15(a)(1).

9. Paragraph (c) is violated when a lawyer accepts a general retainer for legal services to an enterprise known to be unlawful.

Paragraph (c) does not, however, preclude undertaking a criminal defense incident to a general retainer for legal services to

a lawful enterprise.
Rule 1.02. Scope and Objectives of Representation, TX ST RPC Rule 1.02

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

10. The last clause of paragraph (c) recognizes that determining the validity or interpretation of a statute or regulation may

require a course of action involving disobedience of the statute or regulation or of the interpretation placed upon it by

governmental authorities.

11. Paragraph (d) requires a lawyer in certain instances to use reasonable efforts to dissuade a client from committing a crime

or fraud. If the services of the lawyer were used by the client in committing a crime or fraud, paragraph (e) requires the lawyer

to use reasonable efforts to persuade the client to take corrective action.

Client Under a Disability

12. Paragraph (a) assumes that the lawyer is legally authorized to represent the client. The usual attorney-client relationship

is established and maintained by consenting adults who possess the legal capacity to agree to the relationship. Sometimes the

relationship can be established only by a legally effective appointment of the lawyer to represent a person. Unless the lawyer is

legally authorized to act for a person under a disability, an attorney-client relationship does not exist for the purpose of this rule.

13. If a legal representative has already been appointed for the client, the lawyer should ordinarily look to the representative

for decisions on behalf of the client. If a legal representative has not been appointed, paragraph (g) requires a lawyer in some

situations to take protective steps, such as initiating the appointment of a guardian. The lawyer should see to such appointment

or take other protective steps when it reasonably appears advisable to do so in order to serve the client's best interests. See Rule

1.05(c)(4), d(1) and (d)(2)(i) in regard to the lawyer's right to reveal to the court the facts reasonably necessary to secure the

guardianship or other protective order.

Notes of Decisions (19)

V. T. C. A., Govt. Code T. 2, Subt. G App. A, Art. 10, § 9 Rule 1.02, TX ST RPC Rule 1.02

Current with amendments received through 3/15/2015

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
No. 13-15-00042-CV

Belinda Lopez,

Appellant

v.

Santos Maldonado,

Appellee

ITEM 3

Texas Disciplinary Rule of Professional Conduct 1.04
Rule 1.04. Fees, TX ST RPC Rule 1.04

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(a) A lawyer shall not enter into an arrangement for, charge, or collect an illegal fee or unconscionable fee. A fee is

unconscionable if a competent lawyer could not form a reasonable belief that the fee is reasonable.

(b) Factors that may be considered in determining the reasonableness of a fee include, but not to the exclusion of other relevant

factors, the following:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the

legal service properly;

(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment

by the lawyer;

(3) the fee customarily charged in the locality for similar legal services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the circumstances;

(6) the nature and length of the professional relationship with the client;

(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and

(8) whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have been

rendered.
Rule 1.04. Fees, TX ST RPC Rule 1.04

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(c) When the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client,

preferably in writing, before or within a reasonable time after commencing the representation.

(d) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a

contingent fee is prohibited by paragraph (e) or other law. A contingent fee agreement shall be in writing and shall state the

method by which the fee is to be determined. If there is to be a differentiation in the percentage or percentages that shall accrue

to the lawyer in the event of settlement, trial or appeal, the percentage for each shall be stated. The agreement shall state the

litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after

the contingent fee is calculated. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written

statement describing the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method

of its determination.

(e) A lawyer shall not enter into an arrangement for, charge, or collect a contingent fee for representing a defendant in a criminal

case.

(f) A division or arrangement for division of a fee between lawyers who are not in the same firm may be made only if:

(1) the division is:

(i) in proportion to the professional services performed by each lawyer; or

(ii) made between lawyers who assume joint responsibility for the representation; and

(2) the client consents in writing to the terms of the arrangement prior to the time of the association or referral proposed,

including:

(i) the identity of all lawyers or law firms who will participate in the fee-sharing agreement, and

(ii) whether fees will be divided based on the proportion of services performed or by lawyers agreeing to assume joint

responsibility for the representation, and

(iii) the share of the fee that each lawyer or law firm will receive or, if the division is based on the proportion of services

performed, the basis on which the division will be made; and

(3) the aggregate fee does not violate paragraph (a).

(g) Every agreement that allows a lawyer or law firm to associate other counsel in the representation of a person, or to refer the

person to other counsel for such representation, and that results in such an association with or referral to a different law firm

or a lawyer in such a different firm, shall be confirmed by an arrangement conforming to paragraph (f). Consent by a client or

a prospective client without knowledge of the information specified in subparagraph (f)(2) does not constitute a confirmation
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within the meaning of this rule. No attorney shall collect or seek to collect fees or expenses in connection with any such

agreement that is not confirmed in that way, except for:

(1) the reasonable value of legal services provided to that person; and

(2) the reasonable and necessary expenses actually incurred on behalf of that person.

(h) Paragraph (f) of this rule does not apply to payment to a former partner or associate pursuant to a separation or retirement

agreement, or to a lawyer referral program certified by the State Bar of Texas in accordance with the Texas Lawyer Referral

Service Quality Act, Tex. Occ. Code 952.001 et seq., or any amendments or recodifications thereof.

Credits

Adopted by order of Oct. 17, 1989, eff. Jan. 1, 1990. Amended by order of Jan. 28, 2005, eff. Mar. 1, 2005.

<The original Rules Governing the State Bar of Texas, consisting of former

articles 1 to 13, were approved by the Supreme Court February 22, 1940.>

<Articles 1 through 9 of the State Bar Rules were adopted and former articles 1 through 11 of the Rules

Governing the State Bar of Texas were repealed by Order of the Texas Supreme Court dated March 14, 1983.>

<Article 10 of the State Bar Rules was adopted and article 12, §§ 1 to 7 and 9 to 36, as well as

article 13, of the Rules Governing the State Bar were repealed by Order of the Texas Supreme

Court dated February 29, 1984, effective March 1, 1984. That same order also restated and

continued article 12, § 8, of the Rules Governing the State Bar (the Texas Code of Professional

Responsibility) and promulgated such art. 12, § 8 as article 10, § 9, of the State Bar Rules.>

<Article 11 of the State Bar Rules was adopted by order of the Texas Supreme Court dated May 9, 1984.>

<Article 12 of the State Bar Rules, effective June 1, 1986, was adopted

by order of the Texas Supreme Court dated December 19, 1985.>

<Article 13 of the State Bar Rules, effective May 15, 1988, was

adopted by order of the Texas Supreme Court dated March 14, 1988.>

Editors' Notes

COMMENT:

2013 Main Volume

1. A lawyer in good conscience should not charge or collect more than a reasonable fee, although he may charge less or no

fee at all. The determination of the reasonableness of a fee, or of the range of reasonableness, can be a difficult question, and a

standard of “reasonableness” is too vague and uncertain to be an appropriate standard in a disciplinary action. For this reason,

paragraph (a) adopts, for disciplinary purposes only, a clearer standard: the lawyer is subject to discipline for an illegal fee or

an unconscionable fee. Paragraph (a) defines an unconscionable fee in terms of the reasonableness of the fee but in a way to

eliminate factual disputes as to the fee's reasonableness. The Rule's “unconscionable” standard, however, does not preclude use

of the “reasonableness” standard of paragraph (b) in other settings.
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Basis or Rate of Fee

2. When the lawyer has regularly represented a client, they ordinarily will have evolved an understanding concerning the basis or

rate of the fee. If, however, the basis or rate of fee being charged to a regularly represented client differs from the understanding

that has evolved, the lawyer should so advise the client. In a new client-lawyer relationship, an understanding as to the fee

should be promptly established. It is not necessary to recite all the factors that underlie the basis of the fee, but only those that

are directly involved in its computation. It is sufficient, for example, to state that the basic rate is an hourly charge or a fixed

amount or an estimated amount, in order to identity the factors that may be taken into account in finally fixing the fee. When

developments occur during the representation that render an earlier estimate substantially inaccurate, a revised estimate should

be provided to the client. A written statement concerning the fee reduces the possibility of misunderstanding, and when the

lawyer has not regularly represented the client it is preferable for the basis or rate of the fee to be communicated to the client in

writing. Furnishing the client with a simple memorandum or a copy of the lawyer's customary fee schedule is sufficient if the

basis or rate of the fee is set forth. In the case of a contingent fee, a written agreement is mandatory.

Types of Fees

3. Historically lawyers have determined what fees to charge by a variety of methods. Commonly employed are percentage

fees and contingent fees (which may vary in accordance with the amount at stake or recovered), hourly rates, and flat fee

arrangements, or combinations thereof.

4. The determination of a proper fee requires consideration of the interests of both client and lawyer. The determination of

reasonableness requires consideration of all relevant circumstances, including those stated in paragraph (b). Obviously, in a

particular situation not all of the factors listed in paragraph (b) may be relevant and factors not listed could be relevant. The fees

of a lawyer will vary according to many factors, including the time required, the lawyer's experience, ability and reputation, the

nature of the employment, the responsibility involved, and the results obtained.

5. When there is a doubt whether a particular fee arrangement is consistent with the client's best interest, the lawyer should

discuss with the client alternative bases for the fee and explain their implications.

6. Once a fee arrangement is agreed to, a lawyer should not handle the matter so as to further the lawyer's financial interests

to the detriment of the client. For example, a lawyer should not abuse a fee arrangement based primarily on hourly charges

by using wasteful procedures.

Unconscionable Fees

7. Two principal circumstances combine to make it difficult to determine whether a particular fee is unconscionable within

the disciplinary test provided by paragraph (a) of this Rule. The first is the subjectivity of a number of the factors relied on to

determine the reasonableness of fees under paragraph (b). Because those factors do not permit more than an approximation of

a range of fees that might be found reasonable in any given case, there is a corresponding degree of uncertainty in determining

whether a given fee is unconscionable. Secondly, fee arrangements normally are made at the outset of representation, a

time when many uncertainties and contingencies exist, while claims of unconscionability are made in hindsight when the

contingencies have been resolved. The “unconscionability” standard adopts that difference in perspective and requires that a

lawyer be given the benefit of any such uncertainties for disciplinary purposes only. Except in very unusual situations, therefore,

the circumstances at the time a fee arrangement is made should control in determining a question of unconscionability.

8. Two factors in otherwise borderline cases might indicate a fee may be unconscionable. The first is overreaching by a lawyer,

particularly of a client who was unusually susceptible to such overreaching. The second is a failure of the lawyer to give at the

outset a clear and accurate explanation of how a fee was to be calculated. For example, a fee arrangement negotiated at arm's
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length with an experienced business client would rarely be subject to question. On the other hand, a fee arrangement with an

uneducated or unsophisticated individual having no prior experience in such matters should be more carefully scrutinized for

overreaching. While the fact that a client was at a marked disadvantage in bargaining with a lawyer over fees will not make

a fee unconscionable, application of the disciplinary test may require some consideration of the personal circumstances of the

individuals involved.

Fees in Family Law Matters

9. Contingent and percentage fees in family law matters may tend to promote divorce and may be inconsistent with a lawyer's

obligation to encourage reconciliation. Such fee arrangements also may tend to create a conflict of interest between lawyer and

client regarding the appraisal of assets obtained for client. See also Rule 1.08(h). In certain family law matters, such as child

custody and adoption, no res is created to fund a fee. Because of the human relationships involved and the unique character of

the proceedings, contingent fee arrangements in domestic relations cases are rarely justified.

Division of Fees

10. A division of fees is a single billing to a client covering the fee of two or more lawyers who are not in the same firm. A

division of fees facilitates association of more than one lawyer in a matter in which neither alone could serve the client as well,

and most often is used when the fee is contingent and the division is between a referring or associating lawyer initially retained

by the client and a trial specialist, but it applies in all cases in which two or more lawyers are representing a single client in the

same matter, and without regard to whether litigation is involved. Paragraph (f) permits the lawyers to divide a fee either on

the basis of the proportion of services they render or if each lawyer assumes joint responsibility for the representation.

11. Contingent fee agreements must be in a writing signed by the client and must otherwise comply with paragraph (d) of

this Rule.

12. A division of a fee based on the proportion of services rendered by two or more lawyers contemplates that each lawyer is

performing substantial legal services on behalf of the client with respect to the matter. In particular, it requires that each lawyer

who participates in the fee have performed services beyond those involved in initially seeking to acquire and being engaged by

the client. There must be a reasonable correlation between the amount or value of services rendered and responsibility assumed,

and the share of the fee to be received. However, if each participating lawyer performs substantial legal services on behalf of

the client, the agreed division should control even though the division is not directly proportional to actual work performed. If

a division of fee is to be based on the proportion of services rendered, the arrangement may provide that the allocation not be

made until the end of the representation. When the allocation is deferred until the end of the representation, the terms of the

arrangement must include the basis by which the division will be made.

13. Joint responsibility for the representation entails ethical and perhaps financial responsibility for the representation. The

ethical responsibility assumed requires that a referring or associating lawyer make reasonable efforts to assure adequacy

of representation and to provide adequate client communication. Adequacy of representation requires that the referring or

associating lawyer conduct a reasonable investigation of the client's legal matter and refer the matter to a lawyer whom

the referring or associating lawyer reasonably believes is competent to handle it. See Rule 1.01. Adequate attorney-client

communication requires that a referring or associating lawyer monitor the matter throughout the representation and ensure

that the client is informed of those matters that come to that lawyer's attention and that a reasonable lawyer would believe

the client should be aware. See Rule 1.03. Attending all depositions and hearings or requiring that copies of all pleadings and

correspondence be provided a referring or associating lawyer is not necessary in order to meet the monitoring requirement

proposed by this rule. These types of activities may increase the transactional costs, which ultimately the client will bear and

unless some benefit will be derived by the client, they should be avoided. The monitoring requirement is only that the referring

lawyer be reasonably informed of the matter, respond to client questions, and assist the handling lawyer when necessary. Any

referral or association of other counsel should be made based solely on the client's best interest.
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14. In the aggregate, the minimum activities that must be undertaken by referring or associating lawyers pursuant to an

arrangement for a division of fees are substantially greater than those assumed by a lawyer who forwarded a matter to other

counsel, undertook no ongoing obligations with respect to it, and yet received a portion of the handling lawyer's fee once the

matter was concluded, as was permitted under the prior version of this rule. Whether such activities, or any additional activities

that a lawyer might agree to undertake, suffice to make one lawyer participating in such an arrangement responsible for the

professional misconduct of another lawyer who is participating in it and, if so, to what extent, are intended to be resolved by

Texas Civil Practice and Remedies Code, ch. 33, or other applicable law.

15. A client must consent in writing to the terms of the arrangement prior to the time of the association or referral proposed. For

this consent to be effective, the client must have been advised of at least the key features of that arrangement. Those essential

terms, which are specified in subparagraph (f)(2), are 1) the identity of all lawyers or law firms who will participate in the feesharing agreement, 2) whether fees will be divided based on the proportion of services performed or by lawyers agreeing to

assume joint responsibility for the representation, and 3) the share of the fee that each lawyer or law firm will receive or the

basis on which the division will be made if the division is based on proportion of service performed. Consent by a client or

prospective client to the referral to or association of other counsel, made prior to any actual such referral or association, but

without knowledge of the information specified in subparagraph (f)(2) does not constitute sufficient client confirmation within

the meaning of this rule. The referring or associating lawyer or any other lawyer who employs another lawyer to assist in the

representation has the primary duty to ensure full disclosure and compliance with this rule.

16. Paragraph (g) facilitates the enforcement of the requirements of paragraph (f). It does so by providing that agreements that

authorize an attorney either to refer a person's case to another lawyer, or to associate other counsel in the handling of a client's

case, and that actually result in such a referral or association with counsel in a different law firm from the one entering into the

agreement, must be confirmed by an arrangement between the person and the lawyers involved that conforms to paragraph (f).

As noted there, that arrangement must be presented to and agreed to by the person before the referral or association between

the lawyers involved occurs. See subparagraph (f)(2). Because paragraph (g) refers to the party whose matter is involved as a

“person” rather than as a “client,” it is not possible to evade its requirements by having a referring lawyer not formally enter

into an attorney-client relationship with the person involved before referring that person's matter to other counsel. Paragraph

(g) does provide, however, for recovery in quantum meruit in instances where its requirements are not met. See subparagraphs

(g)(1) and (g)(2).P

17. What should be done with any otherwise agreed-to fee that is forfeited in whole or in part due to a lawyer's failure to comply

with paragraph (g) is not resolved by these rules.

18. Subparagraph (f)(3) requires that the aggregate fee charged to clients in connection with a given matter by all of the lawyers

involved meet the standards of paragraph (a)--that is, not be unconscionable.

Fee Disputes and Determinations

19. If a procedure has been established for resolution of fee disputes, such as an arbitration or mediation procedure established

by a bar association, the lawyer should conscientiously consider submitting to it. Law may prescribe a procedure for determining

a lawyer's fee, for example, in representation of an executor or administrator, or when a class or a person is entitled to recover a

reasonable attorney's fee as part of the measure of damages. All involved lawyers should comply with any prescribed procedures.

(Comment amended by Supreme Court Jan. 28, 2005, eff. March 1, 2005.)

Notes of Decisions (77)
Rule 1.04. Fees, TX ST RPC Rule 1.04

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V. T. C. A., Govt. Code T. 2, Subt. G App. A, Art. 10, § 9 Rule 1.04, TX ST RPC Rule 1.04

Current with amendments received through 3/15/2015

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.