Brief for the Defendants-Appellee SUMMARY OF ARGUMENT

SUMMARY OF ARGUMENT

The court should not require that attorneys forfeit their entire fee every time fee forfeiture is an appropriate remedy for a breach of fiduciary duty. Rather, the court should assess the amount of forfeiture for each case individually, especially considering whether the attorney has conferred a benefit on either the client or society as a whole. This will result in the most just and fair remedy.
Mr. Burrow did confer a benefit on Ms. Arce prior to his breach. Quantum meruit requires that she pay for that benefit so as to prevent her from receiving a windfall. Although we recognize that in some instances, the attorney’s conduct may be so outrageous as to mandate forfeiture of even the quantum meruit fee, in this case Mr. Burrow’s misconduct was not so great as to override these equitable concerns.
Because fee forfeiture is an unsettled area of law in Texas, the court should look to how other jurisdictions have addressed the issue, and should approach fee forfeiture in a manner similar to other jurisdictions. The court should also seek guidance from the factors regarding forfeiture in the Restatement (Third) of the Law Governing Lawyers (Tentative Draft No. 4, 1991) and the factors in the Texas punitive damages statute.
A mandatory full forfeiture rule is unfair and in some cases is excessive, which could lead to its being unenforced, even when some forfeiture would be appropriate. Mr. Burrow’s conduct was not so egregious as to require full forfeiture. Forfeiting only those fees that he would have earned after his breach is more appropriate.