Ethical and Fiduciary Obligation Breach
By Michel Keck
This statement serves as a factual account and public record regarding a breach of ethical and fiduciary obligations by my former legal counsel, Higbee & Associates, specifically involving attorney Mathew Higbee, during a federal intellectual property litigation case that took place in Texas.
The following describes actions that, based on a review of the Texas Disciplinary Rules of Professional Conduct, appear to constitute violations of both ethical standards and fiduciary duties owed to me as a client. All assertions herein are supported by court records, trial transcripts, and documented communications.
Background of Representation
I retained Higbee & Associates to represent me in a case involving alleged willful infringement of my federally registered trademark (Michel Keck) and copyrighted artworks. At the outset of the case, I was expressly informed that my legal team recognized and intended to pursue claims related to trademark infringement under the Lanham Act, as well as claims related to copyright infringement under the Copyright Act. I was told these infringements could be viewed by the courts as ‘willful’.
Throughout the early pleadings and court filings, my attorneys represented to the court that defending the Michel Keck trademark was a core objective of the litigation. These representations were made clearly and repeatedly, forming the basis of numerous legal positions asserted on my behalf.
Unauthorized Waiver of Trademark Claims
During trial proceedings, the presiding judge inquired whether it was acceptable to rule on the case without addressing the trademark issues. Without consulting me, notifying me, or obtaining my authorization, attorney Mathew Higbee—on behalf of Higbee & Associates—agreed to waive the court’s consideration of the trademark portion of my claim.
This was done without any disclosure to me before, during, or even after the trial. I did not consent to this action. I did not become aware of this development until the appellate phase, during which I appellate counsel provided me with court transcripts for the first time. (June of 2024). I would have never consented to this action. When I consulted with two independent attorneys unaffiliated with this matter and presented them with the relevant facts and court transcripts, both expressed that they could not identify any legitimate legal or strategic rationale that would justify the waiver of my trademark claims without client consultation or consent. I’m not one to show weakness or let anyone see me cry, but discovering this betrayal cut so deeply that it brought me to tears because it shattered my good faith reliance and trust I placed in the attorneys who promised to protect the rights they ultimately abandoned. I worked so very hard to build a brand name that meant something to me, and unfortunately, people and companies have used my name for their own profit. My trademark rights are every bit as important as the trademark rights of huge corporations such as Disney.
Under Texas law and ethical standards, the unauthorized abandonment of a central legal claim—particularly one previously emphasized as core to the litigation—constitutes a violation of attorney obligations under the Texas Disciplinary Rules of Professional Conduct.
Relevant Violations Under Texas Law
Based on the conduct described above, the following Texas rules appear to have been violated:
- Rule 1.02(a) – Scope and Objectives of Representation
An attorney shall abide by a client’s decisions concerning the objectives of representation. The decision to waive the trademark claim without my consent directly violated this requirement. - Rule 1.03(a) and (b) – Communication
An attorney shall keep a client reasonably informed and explain matters sufficiently for the client to make informed decisions. The failure to disclose the waiver, and to later omit all mention of it, constitutes a breach of this duty. - Rule 1.01(b) – Competence and Diligence
Failing to pursue a material claim central to the litigation and not advising the client of such a change evidences neglect in legal representation.
In addition, under Texas common law, attorneys owe clients a fiduciary duty of full disclosure and undivided loyalty. The decision to waive a major claim without informing the client violates that fiduciary duty and provides grounds for potential civil malpractice liability and disciplinary action.
Evidence Supporting These Assertions
I have obtained and reviewed official court transcripts that contain the following:
- Explicit statements by my attorneys that they were appearing to defend the Michel Keck trademark
- Dialogue in which the presiding judge asked if the trademark claim could be omitted from the ruling
- Agreement to that request by my attorneys, without any record of prior consultation with me
- No disclosure of this event to me at any point during or after the proceedings
- A complete failure to provide trial transcripts unless and until I sought them through appellate counsel
These facts are verifiable by the court record and speak for themselves.
Conclusion
The actions of Higbee & Associates, and specifically attorney Mathew Higbee, in unilaterally agreeing to allow the court to disregard my trademark rights—without my consent, knowledge, or authorization—represent a breach of both ethical rules and fiduciary obligations under Texas law.
This post is being published for the purpose of preserving a public record and ensuring accountability. Clients are entitled to full transparency and lawful advocacy in every stage of litigation. I did not receive that from my former counsel.
Supporting Documentation
All factual claims herein are supported by the official trial transcripts and court filings. Those documents, along with highlighted excerpts and docket references, are provided below.
[Appendix: Court Transcript Excerpts, and Supporting Evidence]
As evidenced in the court transcript directly below, by a single word contained in the transcript, my own attorney—without my knowledge, consent, or authorization—effectively and unilaterally relinquished my legal right to have my federally registered trademark claim adjudicated. That solitary exchange reflects a complete and unauthorized forfeiture of a core element of my case, in direct contravention of the duties owed to me under both ethical and legal standards of representation. Even more egregiously, at no point following the conclusion of the trial did my attorney disclose to me that he had, during the proceedings, waived my trademark claim. This omission constitutes a further and continuing breach of his duty to keep me reasonably informed about material developments in my case, as required by both ethical rules and the fiduciary obligations inherent in the attorney-client relationship.
Mr. Higbee and the court were fully aware that the scope of his representation included the defense of my federally registered trademark, Michel Keck registration number 5280022.
The trademark registration number #5280022 is specifically for Michel Keck and this was fully documented with the courts.
Prior to retaining Higbee & Associates to represent me in this matter, my husband and I explicitly communicated to the firm that the principal basis for pursuing this litigation——was to prevent the unauthorized commercial use of my federally registered trademark, Michel Keck (registration #5280022) in connection to the sale of products falsely implying my sponsorship or endorsement, or origin of the product.
Pursuant to Section 43(a) of the Lanham Act (15 U.S.C. § 1125(a)), I have the legal right to prevent the unauthorized use of my trademark in a manner likely to cause confusion or imply endorsement of goods I did not approve. The commercial product at issue was of such low quality that its association with my Michel Keck trademark posed a direct threat to the reputation and integrity of my brand. As the owner of the mark, I am entitled under federal law to control how and where my name appears in commerce, particularly to avoid false designation and protect against reputational harm stemming from inferior products.
Mr. Higbee at no time obtained my express authorization or informed consent to acquiesce to the Court’s proposal to forgo adjudication of my trademark claim.
As a direct result of the adverse judgment in this matter, the Court ultimately ruled against me solely on the basis of a “fair use” defense pertaining to the copyright infringement claims. The Court made no findings or determinations with respect to my trademark infringement claim, as that claim had been effectively and improperly waived during trial without my knowledge, consent, or authorization. Consequently, I was assessed a monetary judgment in excess of $102,000.00—an amount awarded exclusively against me, and not against Higbee & Associates or Mr. Mathew Higbee, despite the fact that it was Mr. Higbee’s unilateral and unauthorized action that resulted in the exclusion of my trademark claim from judicial consideration. At no time during the proceedings or thereafter was I informed by Mr. Higbee that he had agreed to the Court’s request to forgo adjudication of my trademark rights, depriving me not only of due process but also of the opportunity to meaningfully contest the legal and financial outcomes imposed upon me.
