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Perez v. Kirk & Carrigan - 822 S.W.2d 261 (Tex. App. 1991)


An agreement to form an attorney-client relationship may be implied from the conduct of the parties. Moreover, the relationship does not depend upon the payment of a fee but may exist as a result of rendering services gratuitously. 


Ruben Perez was employed by Valley Coca-Cola Bottling Company as a truck driver. One morning, Perez attempted to stop his truck at a stop sign along his route, but the truck's brakes failed to stop the truck, which collided with the school bus. The loaded bus was knocked into a pond and 21 children died. Perez suffered injuries from the collision and was taken to a local hospital to be treated. The day after the accident, Kirk & Carrigan, lawyers who had been hired to represent Valley Coca-Cola Bottling Company, visited Perez in the hospital for the purpose of taking his statement. Perez claims that the lawyers told him that they were his lawyers too and that anything he told them would be kept confidential.  With this understanding, Perez gave them a sworn statement concerning the accident.  However, after taking Perez' statement, Kirk & Carrigan had no further contact with him. Instead, Kirk & Carrigan made arrangements for a criminal defense attorney, Joseph Connors, to represent Perez. Connors was paid by National Union Fire Insurance Company which covered both Valley Coca-Cola and Perez for liability in connection with the accident. Some time after Connors began representing Perez, Kirk & Carrigan, without telling either Perez or Connors, turned Perez' statement over to the Hidalgo County District Attorney's Office. Kirk & Carrigan contend that Perez' statement was provided in a good faith attempt to fully comply with a request of the district attorney's office and under threat of subpoena if they did not voluntarily comply. Partly on the basis of this statement, the district attorney was able to obtain a grand jury indictment of Perez for involuntary manslaughter for his actions in connection with the accident. 


Did the law firm of Kirk & Carrigan cause defendant to suffer public humiliation and emotional distress by turning over his supposedly confidential statement to the district attorney?




The existence of this relationship encouraged Perez to trust Kirk & Carrigan and gave rise to a corresponding duty on the part of the attorneys not to violate this position of trust. Accordingly, the relation between attorney and client is highly fiduciary in nature, and their dealings with each other are subject to the same scrutiny as a transaction between trustee and beneficiary. The attorneys were at least under a fiduciary duty not to misrepresent to Perez that his conversations with them were confidential. Kirk & Carrigan should not now be able to assert the lack of attorney-client privilege to excuse the harm caused by their own misrepresentation to Perez. 

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