The bill did not, however, eliminate liability for (1) express misrepresentation of material facts that cannot be characterized as advice, judgment or opinion, (2) failure to disclose information that could cause confusion or misunderstanding as to the source, sponsorship, approval or certification of goods or services, (3) an unconscionable act that cannot be characterized as advice, judgment or opinion, or (4) breach of an express warranty that cannot be characterized as advice, judgment or opinion. Claims of misrepresentation of and unconscionable actions are common in legal malpractice cases. TLIE believes that attorneys for legal malpractice plaintiffs will continue to plead cases in a manner that attempts to create fact issues under the exceptions to the professional exemption under the revised statute.
Even if the exemption for professional liability ultimately shields attorneys to some degree from DTPA damages, it is imperative to understand that the changes in the DTPA apply to claims that accrue on or after September 1, 1995. The changes will also apply to all claims filed after September 1, 1996, regardless of the date the claim accrued. In short, claims can continue to be filed until September 1, 1996 that will be subject to the old statute. DTPA coverage is still an important component to consider in looking at your professional liability needs.