I respectfully dissent.
I disagree with the majority's holding that the "good faith" exception to legal malpractice applies under the facts of this case.
In Patterson Wallace v. Frazer, 79 S.W. 1077 (Tex.Civ.App. 1904), 93 S.W. 146 (Tex.Civ.App.), rev'd onother grounds, 100 Tex. 103, 94 S.W. 324 (1906), the Texas Supreme Court approved an ordinary negligence standard in legal malpractice cases, abandoning the previous requirement of gross misfeasance. The jury charge in Patterson contained the following standard of care:
*Page 513Attorneys at law engaged in the practice of their profession are held to undertake to use a reasonable degree of care and skill, and to possess, to a reasonable extent, the knowledge requisite to a proper performance of the duties of their profession;
. . . He only undertakes to avoid errors which members of his profession, in ordinary prudence, learning, diligence, and skill, would not commit. An attorney is not liable as to a question of law upon which reasonable doubt may be entertained by lawyers of ordinary learning and skill, nor is he answerable for errors in judgment upon doubtful points, upon which lawyers of ordinary learning and ability may reasonably differ, but errors as to questions of law which an attorney with reasonable capacity, with ordinary investigation, might know, is a ground for liability, where injury results therefrom. By 'reasonable care and skill' and 'reasonable knowledge' is meant such a degree of care, diligence, and skill as a practicing lawyer of ordinary skill and prudence and knowledge of the law would exercise in case of like character under like circumstances. . . .
In Cook v. Irion, 409 S.W.2d at 477, the San Antonio Court of Appeals further held that an attorney is not liable "for an error in judgment if he acts in good faith and in an honest belief that his advice and acts are well founded and in the best interest of his client." As acknowledged by the majority, this good faith defense has been held to apply only "in those situations where the attorney exercises his best judgment believing that his decision is in the best interest of his client." State v. Baker, 539 S.W.2d at 375. An attorney relying on this defense therefore must exercise judgment in a decisional matter on issues upon which reasonable attorneys might differ, i.e. employ certain tactics or strategies in representing his client. For example, inCook v. Irion, 400 S.W.2d at 475, the attorney was faced with three proper defendants and made a tactical decision to sue only one. Here, however, Grimes did not choose between several proper defendants; rather, he sued the improper party. Furthermore, Grimes admitted that he filed suit based solely on his client's information without making a preliminary investigation, such as attempting to contact Purnell to verify the accident. While an attorney is not answerable for errors in judgment upon which reasonable attorneys might differ, an attorney is negligent if he fails to make a reasonable investigation. See Patterson, 79 S.W. at 1079.
I would further hold that the "good faith" standard, as promulgated by Cook v. Irion, be abandoned. The Texas Supreme Court in Patterson approved an ordinary negligence standard wherein an attorney must be judged on a purely objective basis, as are members of other professions. The "good faith" defense, however, applies a subjective rule that allows a negligent attorney to be absolved of liability when he makes a "mere error in judgment." By carving out a "good faith" exception in legal malpractice cases, the Texas courts have lowered the standard of care for attorneys. This is inconsistent with the ordinary negligence standard under which other professions are judged and with the duty of the legal profession to protect the interests of clients who have been injured by an attorney's negligence. See Ward,Legal Malpractice in Texas, 19 S.Tex.L.J. 587, 591 (1978).
I would therefore reverse that part of the judgment providing that Cosgrove take nothing from Grimes and render judgment for Cosgrove.