Perez v. Kirk & Carrigan
822 S.W.2d 261 (1991)
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Rule of Law:
An attorney-client relationship can be formed by implication based on the conduct of the parties, and once formed, it imposes a high fiduciary duty of confidentiality on the attorney, which is breached if the attorney discloses the client's statement after representing it would be kept confidential.
Facts:
- Ruben Perez, a truck driver for Valley Coca-Cola Bottling Company, was involved in a fatal accident when his truck's brakes failed, and it collided with a school bus, resulting in the deaths of 21 children.
- The day after the accident, while Perez was in the hospital, attorneys from the firm Kirk & Carrigan, who were retained by Valley Coca-Cola, visited him.
- Kirk & Carrigan told Perez that they were his lawyers too and that any statement he provided would be kept confidential.
- Relying on this assurance of confidentiality and representation, Perez gave the attorneys a sworn statement detailing the accident.
- Subsequently, Kirk & Carrigan ceased contact with Perez and arranged for a different attorney, paid by an insurer, to represent him in potential criminal matters.
- Without informing Perez or his new counsel, Kirk & Carrigan provided Perez's sworn statement to the local District Attorney's office.
- Partially based on this statement, a grand jury indicted Perez for involuntary manslaughter.
Procedural Posture:
- Ruben Perez filed a Plea in Intervention and Original Petition against the law firm of Kirk & Carrigan in a Texas state trial court.
- Perez alleged several causes of action, including breach of fiduciary duty and infliction of emotional distress.
- Kirk & Carrigan moved for summary judgment, arguing that no attorney-client relationship existed and that Perez's claims were essentially an invalid claim for malicious prosecution.
- The trial court granted summary judgment in favor of Kirk & Carrigan, ordering that Perez take nothing on his claims.
- The trial court then severed Perez's claims against Kirk & Carrigan, rendering the summary judgment a final, appealable order.
- Perez, as appellant, appealed the trial court's summary judgment to the Court of Appeals of Texas, an intermediate appellate court.
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Issue:
Does an attorney-client relationship and its corresponding fiduciary duty arise by implication when attorneys, hired by a company, represent to the company's employee that they are also his lawyers and that his statement will be kept confidential?
Opinions:
Majority - Dorsey, Justice
Yes, an attorney-client relationship and its corresponding fiduciary duty arise by implication under these circumstances. The court reasoned that an agreement to form an attorney-client relationship may be implied from the conduct of the parties and does not require the payment of a fee. Kirk & Carrigan told Perez they were his lawyers and would keep his statement confidential; Perez's cooperation in giving the statement implied his acceptance of this relationship. This created a highly fiduciary relationship of 'uberrima fides' (most abundant good faith), requiring absolute candor and honesty. The attorneys breached this duty by disclosing the statement to the district attorney. The court held that it was irrelevant whether the formal evidentiary attorney-client privilege attached; the breach occurred either by wrongfully disclosing a privileged statement or by wrongfully representing that an unprivileged statement would be kept confidential, as either action constitutes a deception of the client.
Analysis:
This case establishes that an attorney-client relationship, with its stringent fiduciary duties, can be formed implicitly through an attorney's representations and an individual's reasonable reliance, even without a formal agreement or fee. The decision underscores that the ethical duty of confidentiality can be broader than the evidentiary attorney-client privilege. This precedent serves as a significant warning to corporate counsel conducting internal investigations, highlighting the necessity of providing clear 'Upjohn' or 'corporate Miranda' warnings to employees to clarify that the attorneys represent the company only, thereby avoiding the inadvertent creation of a dual representation and its attendant conflicts and duties.
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