Texas legal malpractice: Parameters of the Texas anti-fracturing rule

Professional negligence claims may not be impermissibly fractured.

Hiring an attorney is a big step – a strategic decision and a financial investment. The reasons to hire a lawyer are numerous, not only involving matters of money, property, injury, personal affairs or rights, but also a client’s personal investment in a matter of importance.

When retaining legal counsel, the client has the right to expect the attorney to adhere to required professional standards and when the lawyer does not, the client may have a legal claim for professional negligence, also known as legal malpractice.

Legal malpractice

Texas courts define professional negligence as an attorney’s failure to exercise the degree of care, skill, and diligence of a lawyer of ordinary knowledge and skill. To prevail in a legal malpractice lawsuit, the plaintiff must show that the lawyer breached the professional duty of care owed to the plaintiff as a result of the attorney-client relationship, causing damages.

Normally, the Texas statute of limitations for legal malpractice is two years. Determining the start date of the two-year period is sometimes a complicated question hinging on when the client discovered the harm or should reasonably have known about it.

Anti-fracturing rule

Sometimes the nature of the unprofessional behavior may support not only a malpractice claim, but also alternative or additional related claims, including:

  • Breach of fiduciary duty
  • Fraud
  • Violation of the Deceptive Trade Practices Act “DTPA”
  • Breach of contract
  • Conversion

There may be tactical advantages in pursuing these additional causes of action, including damages not provided for in professional negligence such as punitive damages (to punish), treble damages, and attorneys’ fees. Some of these alternative claims also provide more time to file suit. For example, the deadline to file a suit for breach of fiduciary duty or fraud is four years.

At this point, things get complicated. A plaintiff who brings alternative claims within the same complaint as well as professional negligence must survive the anti-fracturing rule, which states that if the facts of the case are truly in the nature of malpractice, that claim may not be “fractured” into other kinds of claims.

The policy behind the rule is to prevent plaintiffs from asserting multiple claims with the legal malpractice claim in order to circumvent statute of limitation deadlines or seek alternative damages when such claims do not truly assert a new cause of action.

Application of the rule

To determine whether the anti-fracturing rule has been violated, a Texas court analyzes the facts to see whether the nature, gist, or crux of the case is that legal representation was inadequate or of poor quality, considering what an ordinary lawyer would have done in the same situation, in which case it is malpractice, no matter what label it has been given in the pleadings.

Texas courts have cast a wide net over what constitutes legal negligence, sometimes surprisingly. For example, in Law Office of Oscar C. Gonzalez, Inc. v. Sloan, the court found a lawyer’s failure to protect a client’s settlement proceeds from an affiliated lawyer who absconded with most of the money, as well as the failure to disclose that the affiliated lawyer had a history of professional discipline, constituted legal malpractice and not a DTPA violation, breach of fiduciary duty, or conversion, each of which were rejected as fractured claims.

This is a clear example of the Court applying the anti-fracturing rule very strictly since the alternative claims dealt with deception and self-dealing.


Texas courts make it clear that the anti-fracturing rule does not always prevent other claims from being filed when they have valid factual support. They may be brought in the same complaint if there are “common or overlapping facts.”

For example, if a lawyer’s behavior constituted professional negligence, but also involved the lawyer lying about the legal services that he performed such as timely filing of the lawsuit when in fact it was not timely filed, he may have also violated the DTPA’s bar against unconscionable behavior and that claim could possibly survive the anti-fracturing rule.

Seek legal advice immediately

Any client who feels his or her legal representation has been inadequate should speak with an attorney as early as possible to avoid missing deadlines. A malpractice lawyer will understand the intricacies of the anti-fracturing rule and ensure all the potential claims are pled appropriately.

With offices in Dallas, the lawyers at Nowak & Stauch, PLLC, represent clients in legal negligence cases and similar claims throughout Texas.