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TexLaw, Attorney
Category: Personal Injury Law
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Experience:  Lead Personal Injury Trial Lawyer
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This pertains to a new aspect of a former issue. The attorney

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This pertains to a new aspect of a former issue. The attorney who I retained to represent me in a legal malpractice suit asked me orally if I would agree to a non suit walk away settlement. I said yes and he conveyed this to the defendant. He never put the terms of what a non suit walk away settlement meant. I never received a draft in writing of the terms he discussed with the other attorney. Months went by and nothing was drafted. I finally emailed him and told him that I decided the non-suit should contain a caveat for the legal fees the negligent attorney had charged me. My attorney again never responded to my request. He now stipulates through an email I received today that since he already made an offer for non suit that did not include the terms I describe he will have to withdraw as counsel as he refuses to reneg on an agreement. In the absence of his having put what he was offering in writing to me ahead of making the oral offer to the defendant's attorney is he obligated to reinstate the offer to the other side with my terms or must I either abide by his terms or find a new attorney?

Thank you for your question.

Has the other side accepted the original offer that he communicated to you orally?
Customer: replied 3 years ago.

My attorney claims that the opposing attorney did accept the offer....but that was last Feb. and nothing was ever put in writing to me for agreement and signature. I was never given advance notification of exactly what he was offering...I was not informed of what a walk away agreement meant and what the terms would be. I would have thought that if an offer was on the table that either or both attorneys might have put it in writing within the last seven months to memorialize what they orally discussed and that before any oral offer was made by my attorney that he might have written to me exactly what he proposed to discuss with the other attorney....but that never happened.

That sounds suspicious to me. If its not in writing and the case is still ongoing, then its not too late to revoke the offer.

I don't understand why your attorney will not revoke the offer and then reissue the offer with the new conditions since the case is still ongoing. An offer to settle has not been completed, if it is a true walk away offer, unless the case has actually been dismissed.

Has the case been dismissed (i.e., has it been nonsuited yet)
Customer: replied 3 years ago.

No it has not been dismissed....there is a motion under 165a for a hearing for dismissal coming up on (9/12) for want of prosecution. Rather than resubmit my offer to the other side my attorney wants to withdraw and ask the court for more time for me to find new counsel. Is he not obligated to represent me during this time when I have exercised my interests and asked him to reassert the settlement issues I have proposed as well as object to the dismissal? He has literally abandoned the non action for so many months....nothing was ever signed and he is now claiming that because he orally offered to agree to a non suit walk away that he will not reneg on an oral agreement. My position is that nothing was ever signed and the terms were never memorialized in that in fact there is room to reassert a new proposal for settlement. If the court denies my right for more time and dismisses this attorney will have seriously compromised my claims. I might have to write to the court and state that my attorney has abandoned this case....and is unresponsive to my requests for a proposed final settlement. Actually I am not sure what to do as I do not want to shoot myself in the foot by taking any actions that could come back to haunt me later.

He is not obligated to represent you and can withdraw if you want to do something that he does not recommend. In a civil suit, it is rare for a court to say that an attorney cannot withdraw.

Now, on the other hand, if you have paid him fees, then he may be bound or may be breaching his contract with you by not restating the offer. If he is in a contingency agreement with you, then it is not likely that you can make him represent you further.

If the agreement is that you are simply going to walk away from the case and nonsuit it without anything in return, then the other side should have gotten that in writing. Since there is no written settlement agreement, and you have not actually gotten anything out of this in return for your agreement to drop the suit, the offer has not been accepted.

Am I correct in assuming that the other side has not given you something in return for your attorney's oral agreement to nonsuit the case?
Customer: replied 3 years ago.

This was not a contingency agreement. I paid him fees. Yes you are correct that I have received nothing in return for the alleged oral agreement to nonsuit the case (nothing in writing and nothing of value to me). Neither my attorney nor the defendant's attorney has written up any final settlement agreement to be signed. In my opinion there has been no mutual understanding.


Since he refuses to resubmit my terms for settlement even though his rationale for not wanting to has no merit - (since I received nothing in return for his alleged oral agreement to a non suit settlement)....can he withdraw without the permission of the court and my agreement to do so? Is he obligated to represent me with the new settlement terms I have proposed whereby I wish to assert my right to the return of my legal fees in return for dropping the suit. I emailed him in early May about this and only heard back from him this week!

Customer: replied 3 years ago.

JUST FOUND THIS ONLINE FOR CA: Would this be the same for Texas?


Oral Settlement Agreements
What if the parties reach an oral agreement? Here, too, there is an avenue to enforceability, but it is very narrow. Evidence of an oral settlement agreement is admissible only in limited scenarios prescribed by Evidence Code sections 1118 and 1124. Evidence Code section 1118 states, "An oral agreement 'in accordance with Section 1118' means an oral agreement that satisfies all of the following conditions: (a) it must be recorded by a court reporter, tape recorder, or other reliable means of sound recording; (b) the terms of the oral agreement are recited on the record in the presence of the parties and the mediator, and the parties express on the record that they agree to the terms recited; (c) the parties to the oral agreement expressly state on the record that the agreement is enforceable or binding or words to that effect; and (d) the recording is reduced to writing and the writing is signed by the parties within 72 hours after it is recorded."



If the parties do not follow the statutory procedures, the court will not admit any evidence of an alleged oral agreement. A party may not waive the mediation privilege by his or her conduct; it may only be waived expressly through the strict provisions of the Evidence Code (Simmons v. Ghaderi, 44 Cal. 4th 570 (2008)).

Customer: replied 3 years ago.

Just found this on line for Texas: Does Rule 11 apply to civil suits as well?


Oral Settlement Agreement Unenforceable in Texas

Businesses involved in Texas litigation should review a recent decision by the Texas Supreme Court where the court refused to enforce an oral settlement agreement. InKnapp Medical Center v. De La Garza, 2007 WL(NNN) NNN-NNNN(Tex. 2007), the court made it clear that an oral agreement settling a case cannot be enforced in a Texas court. The court concluded that Texas Rule of Civil Procedure 11, which requires that agreements related to pending litigation must be in writing, bars the enforcement of an oral agreement.

Dr. Javier De La Garza, M.D. filed suit against Knapp Medical Center, a hospital in Weslaco, Texas for defamation, business disparagement, interference with business relations, and civil conspiracy. During the trial, De La Garza’s attorney offered to settle the case based on the hospital’s insurance policy limits of $1,000,000. When he made the settlement offer, De La Garza’s attorney understood that the hospital would also contribute an additional $200,000 to the settlement. After he made the policy-limits demand, the attorney learned that in fact, the hospital did not plan to contribute the additional $200,000 to the settlement. Instead, the insurer had agreed to settle for the $1,000,000 policy limits. In open court prior to the closing arguments, De La Garza’s attorney explained to the judge that he had made the offer with the understanding that the hospital would contribute the additional $200,000. The hospital’s attorney, while acknowledging that an additional contribution had been discussed, stated that the insurer had agreed to settle the case for policy limits. Despite the disagreement, De La Garza agreed on the record to settle the underlying claims for $1,000,000, while purporting to reserve his right to collect an additional $200,000 from the hospital in another lawsuit. The judge accepted the agreement and discharged the jury. De La Garza then signed a Release that acknowledged the settlement funds as complete satisfaction of the claims asserted in the litigation.

De La Garza later filed suit against the hospital for the disputed $200,000, alleging claims for fraud and breach of an oral agreement that pre-dated the agreement that was read into the record and accepted by the court. The trial court entered judgment in favor of De La Garza and awarded attorney’s fees. The hospital appealed, contending that Rule 11 barred De La Garza’s claims. The court of appeals ignored the Rule 11 argument, concluding instead that parol testimony of one of the attorneys was sufficient to support the existence and breach of the settlement agreement.

Without hearing oral argument, the Supreme Court granted review and reversed the court of appeals’ decision, holding that the purported oral settlement agreement was unenforceable under Rule 11. Rule 11 states that “unless otherwise provided in these rules, no agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.” The court noted that Rule 11 “has long been a part of Texas jurisprudence” and represented “the wisdom of eschewing the verbal agreements of counsel in favor of written ones . . ..” The rule is intended to promote finalizing settlements “by objective manifestation so that the agreements do not themselves become sources of controversy.” In sum, for a settlement to be enforceable in Texas, it must comply with Rule 11.

In this case, the only agreement that complied with Rule 11 was the agreement read into the record to settle the case for $1,000,000. There was no written agreement to settle for any other amount. The hospital’s alleged agreement to contribute an additional $200,000 was neither in writing nor made in open court and entered into the record. Accordingly, it was not enforceable. The decision in Knapp serves as a reminder to Texas practitioners and litigants that compliance with Rule 11 is a necessary prerequisite to seeking enforcement of any agreement related to a pending lawsuit.

Full Opinion Text:




Sorry for the delay in response. Happy Labor Day!

Yes, Rule 11 does apply to civil suits. In fact, it is Rule 11 of the Texas Rules of Civil Procedure to which you reference. Further, here, there does not seem to be any consideration given for the oral walk away agreement, so I do not think it is enforceable as there is no quid pro quo (in addition to it not being written).

In regard to your attorney walking away, yes, he likely can. Texas law allows an attorney to withdraw from a case if he and his client disagree as to the way forward and the client is not placed in immediate danger of losing his rights. Since trial is not imminent here (it does not sound as if it has been set), then it likely ok to withdraw. However, you are entitled to file a written objection with the court as to why you don't want your attorney to withdraw.

You are entitled to have notice of when the attorney files the motion to withdraw as counsel and to file your written objection at that time outlining the reasons why he should not withdraw (i.e., you have paids him fees, there is no disagreement over additional fees, and you have asked him to revise an oral offer on a settlement agreement which has not in fact been reduced to writing and which is not binding as it has not been accepted in writing).
Customer: replied 3 years ago.

Forgot to mention....there is a hearing for dismissal of this case under 165a for want of prosecution. The hearing is scheduled for Sept. 12th. If my attorney resigns before the hearing he is in fact jeopardizing my claims. I would also need more time to find a new attorney to represent he would have to put in a motion to withdraw and at the same time ask for a continuance in order for me to find new counsel. I do not believe this attorney is acting in my best interests...and yes there was no quid pro quo on the oral agreement....I received nothing in return for his statement that he offered a walk away non suit agreement.


So my question is....if he wants out should he be the one filing for withdrawal from the court and asking for a continuance or should I be doing that? How much time can I ask for in a continuance? I would like to try to settle this pro se if he resigns on my own terms. If the defendant's attorney does not agree then I would retain another attorney.


Also, how do I obtain my legal files if my attorney does resign. Is he obligated to send them back to me if I request them?

A dismissal for want of prosecution is not something that you need to obtain a continuance on. All you need to do is show up at the court during the hearing and explain that you are going to continue to prosecute the case, and that your attorney is refusing to do any work on it (and has said he is going to withdraw), and ask the court for additional time.

The attorney should not withdraw before this hearing if you have instructed him otherwise. However, it sounds like he is not going to cooperate with you, so you should be prepared to go to the hearing and explain to the judge your situation.

If the attorney wants out, then he should be the party filing the motion to withdraw and has to go through certain steps under the Rules before he is simply allowed to do that (including notifying you of all deadlines and offering you an opportunity to come and get the file). All that is needed to get the file is to simply ask the attorney for it. He may remove all his attorney-work product, which includes his plans and research. But the pleadings and the discovery and correspondence would remain in the file and you are legally entitled to a copy of it.
Customer: replied 3 years ago.

Since I live in NYC and the hearing is in Texas can I communicate with the court and request a teleconference if the attorney is a no show or if he withdraws before the hearing?

It's possible. You need to contact the court clerk now and tell them what is going on and that you need to attend the hearing via telephone. Its up to the court in the end as to whether they will allow it or not.
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