Moser v. Davis, 79 S.W.3d 162 (Tex. App.—Amarillo 2002, no pet.).


Attorney was in the process of preparing reciprocal wills for Husband and Wife. Wife contacted Attorney’s Secretary with information needed to complete the wills and was told that Attorney was out-of-town. Wife was adamant that the wills needed to be finalized so Secretary finished preparing them and conducted the will execution ceremony. Secretary then squirreled the wills away in the firm’s safe deposit box. Secretary did not inform Attorney about her foray into “attorney-land.” When Husband died, the sequence of events came to light including the fact that Secretary may not have prepared the documents properly. Wife then sued Attorney for malpractice. The jury determined that Attorney was not responsible for Secretary’s conduct because Secretary acted outside the course and scope of her employment when she prepared the wills and conducted the execution ceremony. Wife appealed.

The appellate court affirmed. The court carefully reviewed the evidence and determined that the jury had sufficient grounds to support its finding that Secretary acted outside the scope of her employment. There was no evidence to show that her duties were to include tasks which would be considered the practice of law.

Moral: An attorney must carefully supervise legal secretaries and legal assistants to make certain they do not perform acts which would be the practice of law without a license.