Moser v. Davis, 79 S.W.3d 162 (Tex. App.—Amarillo 2002, no pet.).
Attorney was in the process of preparing reciprocal wills for Husband
and Wife. Wife contacted Attorney’s Secretary with information needed to
complete the wills and was told that Attorney was out-of-town. Wife was
adamant that the wills needed to be finalized so Secretary finished
preparing them and conducted the will execution ceremony. Secretary then
squirreled the wills away in the firm’s safe deposit box. Secretary did
not inform Attorney about her foray into “attorney-land.” When Husband
died, the sequence of events came to light including the fact that
Secretary may not have prepared the documents properly. Wife then sued
Attorney for malpractice. The jury determined that Attorney was not
responsible for Secretary’s conduct because Secretary acted outside the
course and scope of her employment when she prepared the wills and
conducted the execution ceremony. Wife appealed.
The appellate court affirmed. The court carefully reviewed the evidence
and determined that the jury had sufficient grounds to support its
finding that Secretary acted outside the scope of her employment. There
was no evidence to show that her duties were to include tasks which
would be considered the practice of law.
Moral: An attorney must carefully supervise legal secretaries and legal
assistants to make certain they do not perform acts which would be the
practice of law without a license.