Liability of Trustee’s Attorney

Combs v. Gent, 181 S.W.3d 378 (Tex. App.—Dallas 2005, no pet.).


After being contacted by Caretaker, Attorney met with Client about handling Client’s affairs. Client explained that she was tired of dealing with Nieces & Nephews regarding her financial affairs and warned Attorney that they were likely to sue him. After much discussion, Attorney drafted a trust for Client and Client agreed to pay him a 5% fee. Attorney served as the trustee with his children being co-trustees if Attorney could no longer serve. Client wanted attorneys to be the trustees and all of Attorney’s children were either lawyers or in law school. Client was the sole beneficiary until her death when the trust property would be divided among 18 beneficiaries which included Nieces & Nephews. As time elapsed, Attorney helped Client transfer her property into the trust and was paid for his services. After Client died, Nieces & Nephews quickly became very demanding about estate matters. Attorney resigned and the court appointed a successor Trustee. Over two years later, Trustee sued Attorney claiming breach of fiduciary duty and legal malpractice. At trial, the jury found in favor of Attorney and ordered Trustee to pay Attorney’s legal expenses which were in excess of $150,000. Trustee appealed.

The appellate court affirmed. The court examined the evidence that Attorney charged excessive fees and mismanaged the trust. The court placed great weight on the fact that the jury heard the evidence and concluded that Attorney’s actions had not harmed the trust in any way. In addition, the court enumerated the steps Attorney took to be certain Client was fully informed regarding his actions and fees. It was also significant that Client repeatedly warned Attorney that there would be a “bloodshed war” after her death and that four other attorneys had refused to take on the task. The court held that the jury’s failure to find a breach of fiduciary duty was not so against the great weight and preponderance of the evidence as to be manifestly unjust.

The court conducted a similar analysis and held that the evidence was sufficient for the jury to find that Attorney had not committed malpractice. Finally, the court agreed that the trial court had the power under Property Code § 114.064(a) to award attorney’s fees and that under the circumstances, the award was equitable and just.

Moral: An attorney needs to be extremely careful in accepting employment when the client issues a dire prediction about the possibility of litigation after the client’s death. If the attorney decides to accept employment despite the risk, careful attention to detail and meticulous record-keeping is advised.