OPINION
BARBARA ROSENBERG, Justice (Assigned).
Two Thirty Nine Joint Venture (239 JV) brought suit for malpractice and breach of fiduciary duty and duty of loyalty against Harry J. Joe, individually, and his law firm, Jenkens & Gilchrist, P.C. (J & G). The basis of the suit was that Joe and J & G breached their duty of loyalty to 239 JV when neither Joe nor the law firm disclosed that Joe, as a member of the Irving City Council, would or could take positions that would affect the real estate transactions in which J & G represented 239 JV. Joe filed a motion for summary judgment based on official immunity, which the trial court granted. Then, J & G filed a motion for summary judgment based on Joe’s immunity, whether 239 JV had produced evidence to support each element of a malpractice claim, and other grounds. The trial court granted J <& G’s motion. In three points of error, 239 JV challenges the summary judgments, asserting (1) the trial court abused its discretion in failing to grant a motion for continuance when that motion was filed and heard within three months of the suit’s filing; (2) Joe’s summary judgment was improper because fact issues exist as to Joe’s official immunity; and (3) J & G’s summary judgment was erroneously granted. Because we conclude that the trial court abused its discretion in failing to grant a motion for continuance on Joe’s motion for summary judgment, we reverse and remand the cause of action against Joe. Because we conclude that an attorney’s duty of care includes disclosure of any conflict of interest that may affect the attorney’s representation of that client’s interest and that neither legislative nor official immunity protects an attorney from that private duty, we reverse and remand the summary judgment in favor of J & G.
FACTUAL AND PROCEDURAL BACKGROUND
Beginning in 1992, J & G attorneys represented 239 JV in its formation and business activities of acquiring, developing, and selling 239 acres located in Valley Ranch, a master-planned community located in Irving, Texas. By August 1994, 239 JV had sold all but an eleven-acre apartment tract. On August 18, 1994, 239 JV entered into a contract for the sale of that acreage. The contract was reviewed by William Thau, a J & G shareholder, and he provided legal advice to 239 JV on the sale of this acre[901]*901age. The contract provided a review period ending September 17,1994.
On September 4, 1994, the Sunday before Labor Day, the Irving City Council posted a three-day notice of a special meeting at which the council would consider an ordinance that would place a moratorium on apartment development. On September 7, at the special council meeting, Joe, a member of the Irving City Council and a partner in J & G, made the motion to adopt the moratorium, and the council passed the ordinance unanimously. On or about that same date, because of the City of Irving’s moratorium on the building of apartments, the purchasers rejected the contract for sale of the eleven-acre apartment tract.
After learning that Joe was a member of J & G, members of 239 JV met with Joe. Joe was told of J & G’s representation of 239 JV for the sale, of the apartment property. The 239 JV members urged Joe to support the interests of the venture, and, if he could not, they asked him to declare a conflict of interest and withdraw from any further leadership role, discussion, or vote on the moratorium. Subsequently, on December 15, 1994 and May 18, 1995, Joe voted twice to extend the moratorium. On June 22, 1995, when 239 JV requested a waiver of the moratorium, Joe abstained from the council vote.
On April 18, 1997, 239 JV filed suit against Joe and J & G. On May 12, 1997, they answered. On June 12, 1997, Joe filed his motion for summary judgment based on immunity. 239 JV filed a motion for continuance for time to obtain discovery for purposes of the summary judgment issues. The trial court denied the motion for continuance and granted Joe’s motion for summary judgment.
After discovery, J & G filed a motion for summary judgment on six independent grounds. The trial court granted J & G’s motion without stating the grounds. This appeal followed.
THE MOTION FOR CONTINUANCE
In 239 JVs first point of error, it complains that the trial court abused its discretion in denying 239 JVs first motion for continuance of Joe’s summary judgment. Joe responds that no discovery is necessary to determine the official immunity defense that is the basis of his motion for summary judgment.2
[902]*902When a party contends that it has not had an adequate opportunity for discovery before a summary judgment hearing, it must file either an affidavit explaining the need for further discovery or a verified motion for continuance. Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex.1996); see Tex. Rs. Civ. P. 166a(g), 251, 252. It is within a trial court’s discretion to grant a continuance until the requested discovery is completed. Levinthal v. Kelsey-Seybold Clinic, P.A., 902 S.W.2d 508, 510 (Tex.App.—Houston [1st Dist.] 1994, no writ). We will not disturb the trial court’s denial of a motion for continuance except for a clear abuse of discretion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex.1986); Verkin v. Southwest Ctr. One, Ltd., 784 S.W.2d 92, 94 (Tex.App.—Houston [1st Dist.] 1989, writ denied).
In deciding whether the trial court abused its discretion in denying a rule 166a(g) motion for continuance, we consider the length of time the case had been on file, the materiality of the discovery sought, whether the party seeking the continuance had exercised due diligence in attempting to obtain the discovery sought, and what the party expects to prove. Laughlin v. Bergman, 962 S.W.2d 64, 65-66 (Tex.App.—Houston [1st Dist.] 1997, pet. denied); Me Ax Sign Co. v. Royal Coach, Inc., 547 S.W.2d 368, 370 (Tex.Civ. App.—Dallas 1977, no writ); see Tex.R. Civ. P. 252.
239 JV filed its petition April 18, 1997; Joe and J & G filed answers on May 12; Joe filed his motion for summary judgment on June 12; and the trial court granted Joe’s motion on July 11. Thus, the suit had been on file three months before summary judgment was granted. Trial courts have abused their discretion in denying continuances when cases have been on file for three, Levinthal, 902 S.W.2d at 510, six, Verkin, 784 S.W.2d at 94-95, and eleven months, Laughlin, 962 S.W.2d at 66, when due diligence and materiality of discovery are established.
To establish due diligence, 239 JV’s counsel filed a motion for continuance with an affidavit stating he had not had an adequate opportunity for discovery before a summary judgment hearing. The motion stated that counsel needed additional time to conduct discovery regarding whether Joe acted as a councilman and J & G’s representation of 239 JV. In his affidavit, lead counsel stated that, while the suit had been on file two months, lead counsel was in an out-of-town trial from the time of Joe’s answer to the suit until June 10. Joe’s motion for summary judgment was served June 12 and was set for July ' 11. Correspondence between 239 JVs counsel and appellees’ counsel shows that on June 17, 239 JV’s counsel attempted to depose Joe and others. However, appellees’ counsel refused, stating, “[W]e will take the position that you are entitled to no discovery until after the Court has determined the issue of immunity.” Thus, counsel’s attempts to procure testimony within three months of filing suit showed due diligence in attempting to obtain discovery. See id. at 66.
Because due diligence is only part of the test, counsel must show that the testimony is relevant to the immunity defense. Official immunity only shields persons from suits complaining of official acts. Bonham v. Flach, 744 S.W.2d 690, 692-93 (Tex.App.—San Antonio 1988, no writ); Bagg v. Univ. of Tex. Med. Branch at Galveston, 726 S.W.2d 582, 586 (Tex.App.—Houston [14th Dist.] 1987, writ refd n.r.e.). In its motion for continuance, 239 JV questioned whether all Joe’s actions were as a council [903]*903member and in good faith, in that he had done legal research and turned it over to an advocacy group, and was acting as counsel for the city in conflict with 239 JV’s interest. These issues could controvert Joe’s allegations that all his actions and advocacy were performed in his discretionary duties as an Irving City Council member, in good faith, and within his authority as a council member.
Joe, however, argues that Mayhew v. Town of Sunnyvale, 774 S.W.2d 284 (Tex.App.—Dallas 1989, writ denied), mandates that no depositions are proper. Mayhew involved judicial review of legislation. This Court held that individual legislators may not be questioned to determine the evidence upon which they relied or their reasons for a particular vote. Id. at 298. Unlike the authority cited by Joe that involve a dispute about the validity or legality of city council actions, see id.; Sosa v. City of Corpus Christi, 739 S.W.2d 397, 404-05 (Tex.App.—Corpus Christi 1987, no writ), this suit questions Joe’s acts as a lawyer. When a claimant brings an action against an officeholder in an individual capacity, discovery, including the deposition of the officeholder, is appropriate. See State v. Sims, 871 S.W.2d 259, 268 (Tex.App.—Amarillo 1994, orig. proceeding). Here, 239 JV is not trying to determine the reasons for the zoning restriction; rather, it is attempting to determine all Joe’s individual acts concerning the moratorium. Any such acts he took in his individual capacity would not be protected by governmental immunity. See Bagg, 726 S.W.2d at 586-87. Therefore, the discovery requested was relevant to the issues involved in this case.
Denial of a continuance is an abuse of discretion when it prohibits a party from engaging in meaningful discovery and forecloses the plaintiffs case. See Laughlin, 962 S.W.2d at 66. Therefore, the trial court abused its discretion in not granting the continuance because due diligence was demonstrated and 239 JV was denied any discovery when some of its claims could be maintained against Joe in his individual capacity. We sustain 239 JVs first point of error. Further, because evidence discovered during the continuance may raise fact issues on Joe’s individual acts and his governmental immunity defense, the trial court improperly granted summary judgment in Joe’s favor on grounds of immunity after refusing to grant a continuance. Because we need not address the merits of Joe’s motion for summary judgment, we need not address 239 JV’s second point of error.
J & G’S MOTION FOR SUMMARY JUDGMENT
In its third point of error, 239 JV challenges the trial court’s granting of J & G’s motion for summary judgment. The traditional and no-evidence motion raised six grounds for summary judgment: J & G cannot be held hable because Joe is immune from suit; the Local Government Code relating to conflict of interest provides 239 JVs exclusive remedy; J & G did not owe its clients a duty to influence or control Joe’s actions as a public servant; 239 JV cannot establish proximate cause; 239 JV waived any conflict or claim for malpractice; and 239 JV has not sustained damages. 239 JV argues that J & G owed 239 JV a duty of loyalty and fiduciary duties that were not affected by Joe’s status as a city council member. 239 JV also contends that J & G failed to prove these grounds as a matter of law and that genuine issues of material fact exist.
Standard of Review
Summary judgment is proper when the movant establishes that there is no genuine issue of material fact and he is [904]*904entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); see City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). The question on appeal is not whether the summary judgment proof raises a fact issue with reference to the essential elements of the plaintiffs causes of action, but whether the summary judgment proof establishes that the mov-ant is entitled to summary judgment as a matter of law. Gonzalez v. Mission Am. Ins. Co., 795 S.W.2d 734, 736 (Tex.1990). A defendant is entitled to summary judgment when he disproves, as a matter of law, one of the essential elements of each of the plaintiffs causes of action. Lear Siegler, Inc. v.. Perez, 819 S.W.2d 470, 471 (Tex.1991).
A no-evidence summary judgment asserts that there is no evidence of one or more essential elements of claims upon which the opposing party would have the burden of proof at trial. Tex.R. Civ. P. 166a(i). A no-evidence summary judgment is essentially a pretrial directed verdict to which we apply the same legal sufficiency standard of review. Gen. Mills Rests., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 832-33 (Tex.App.—Dallas 2000, no pet.); Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 70 (Tex.App.—Austin 1998, no pet.). Although the nonmoving party is not required to marshal its proof, it must present evidence that raises a genuine fact issue on the challenged elements. McCombs v. Children’s Med. Ctr., 1 S.W.3d 256, 258 (Tex.App.—Texarkana 1999, pet. denied) (citing Tex.R. Civ. P. 166a cmt.). A no-evidence summary judgment is properly granted if the nonmovant fails to bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact as to the challenged element of the claims. Tex.R. Civ. P. 166a(i); Jackson, 979 S.W.2d at 70-71.
In reviewing the grant of summary judgment pursuant to either rule 166a(c) or (i), we view the evidence in the light most favorable to the nonmovant and make every reasonable inference and resolve all doubts in favor of the nonmovant. See Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985); Gen. Mills Rests., Inc., 12 S.W.3d at 833 (citing Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997)).
The Breach of Fiduciary Duty and Loyalty Claim
239 JV alleged that Joe and J & G breached their fiduciary duties and duties of loyalty to 239 JV when Joe did not disclose his conflict of interest with 239 JV on the impending vote on the moratorium as well with as his actual vote and participation in moratorium activities. J & G asserted in its motion for summary judgment that J & G had no duty concerning Joe’s actions because he was a public official and there was neither proximate cause nor permissible damages. J <& G also argues that the violation of any Texas Disciplinary Rule of Professional Conduct cannot be used to support civil liability.
Civil Liability
The elements of a legal malpractice claim are (1) duty, (2) a breach of duty, (3) the breach proximately caused the injury, and (4) resulting damages. Peeler v. Hughes & Luce, 868 S.W.2d 823, 827-28 (Tex.App.—Dallas 1993), aff'd, 909 S.W.2d 494 (Tex.1995); see Onwuteaka v. Gill, 908 S.W.2d 276, 281-82 (TexApp.—Houston [1st Dist.] 1995, no writ). A lawyer in Texas is held to the standard of care that would be exercised by a reasonably prudent attorney. Cosgrove v. Grimes, 774 S.W.2d 662, 664 (Tex.1989) (op. on reh’g); see Barcelo v. Elliott, 923 S.W.2d 575, 577 (Tex.1996). Additionally, attor[905]*905neys have a fiduciary relationship with their clients as a matter of law. Gen. Motors Acceptance Corp. v. Crenshaw, Dupree & Milam, L.L.P., 986 S.W.2d 632, 636 (Tex.App.—El Paso 1998, pet. denied) (citing Cooper v. Lee, 75 Tex. 114, 120-21, 12 S.W. 483, 486 (1889)).
Here, 239 JV and its expert used the Texas Disciplinary Rules of Professional Conduct to demonstrate the standard of care and duties of an attorney to avoid conflicts and keep the client informed. The preamble of the Disciplinary Rules states that the rules are not to define the standards of civil liability. Tex. DisciplinaRY R. Prof’l Conduct preamble ¶ 15, reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G app. A (Vernon 1998) (Tex. State Bar R. art. X, § 9) (“Violation of a rule does not give rise to a private cause of action nor does it create any presumption that a legal duty to a client has been breached.”). However, the preamble does not comment on and is not inconsistent with the use of the rules as evidence of a violation of an existing duty of care, as provided for by the Restatement (Third) of the Law Governing Lawyers. See Restatement (Third) of the Law Governing Lawyers § 52(2) & cmt. (f) (2000). Section 52(2) provides that a rule or statute regulating the conduct of lawyers does not give rise to an implied cause of action for professional negligence or breach of fiduciary duty, but it may be considered by a trier of fact in understanding and applying the standard of care for malpractice or determining a breach of fiduciary duty. Id. § 52(2). This provision reflects a common-sense approach to using the rules of conduct in a malpractice or breach of fiduciary duty action. A standard of care in a professional negligence suit does and should reflect work custom. Note, The Evidentiary Use of the Ethics Codes in Legal Malpractice: Erasing a Double Standard, 109 Harv. L.Rev. 1102, 1118 (1996) (citing Charles W. Wolfram, The Code of Professional Responsibility as a Measure of Attorney Liability in Civil Litigation, 30 S.C. L.Rev. 281, 294 (1979)). Lawyers have established codes of conduct to reflect a professional consensus that no attorney shall fall below. Id.; see Tex. Disciplinary R. PROf’l Conduct preamble ¶ 7. Barring the use of the code and denying that the code is relevant to the duties a lawyer has to his client is not logical and would require the re-creation of a standard of care without reference to verifiable or pre-existing rules of conduct. Note, supra, at 1119. Therefore, the trier of fact may consider the construction of a relevant rule of professional conduct that is designed for the protection of persons in the position of the claimant as evidence of the standard of care and breach of the standard. Restatement (Third) of the Law Governing Lawyers § 52, cmt. (f).
Notwithstanding the disciplinary rules, an attorney’s duty of care includes the duty to avoid conflicts of interest that may impair the attorney’s ability to exercise independent professional judgment on behalf of the client. Id. § 16(3); 1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 4.4 (2001). And the duty to avoid conflicts of interest is a key aspect of the fiduciary duty that an attorney owes to his client generally. Restatement (Third) of the Law GoveRNing Lawyers § 16(3). When a lawyer continues representation with the possibility of a conflict without obtaining properly informed consent from the affected client, there is a breach of the duty of loyalty. 1 Hazard & Hodes, supra, § 4.4. Because avoiding conflicts of interest and thereby observing the fiduciary duty of loyalty is an action that a reasonably prudent lawyer would observe in relation to the client, a lawyer can be civilly hable to a client if the [906]*906lawyer breaches a fiduciary duty to a client by not avoiding impermissible conflicts of interest, and the breach is a legal cause of injury. Restatement (ThiRd) of the Law Goveenino Lawyers §§ 16(3), 49; 1 Hazard & Hodes, swpra, § 4.4; see Arce v. Burrow, 958 S.W.2d 239, 245-46 (Tex.App. — Houston [14th Dist.] 1997) (describing attorney’s fiduciary duty to client), aff'd in part & rev’d in part on other grounds, 997 S.W.2d 229 (Tex.1999).
Finally, the liability would extend to the firm and any member of the firm that engaged in the prohibited conduct. See Cook v. Brundidge, Fountain, Elliott & Churchill, 533 S.W.2d 751, 758 (Tex.1976) (noting extent of partner’s authority is “determined essentially by the same principles as those measuring the scope of the authority of an agent”); Metroplex Glass Ctr., Inc. v. Vantage Props., Inc., 646 S.W.2d 263, 266 (Tex.App.—Dallas 1983, writ ref'd n.r.e.) (noting it is well settled “that a partner may act as an agent within the scope of his authority to represent and bind the partnership”); see also DeWitt v. Harris County, 904 S.W.2d 650, 654 (Tex.1995) (under respondeat superior, principal is vicariously liable for negligence of agent acting within scope of agency, although principal has not personally committed wrong); Restatement (Second) of Agency § 219 (1958); Tex. Disciplinary R. Prof’l Conduct 1.06(f) (“If a lawyer would be prohibited by this Rule from engaging in particular conduct, no other lawyer while a member or associated with that lawyer’s firm may engage in that conduct.”).
Duty of Attorney Public Official
The issue in determining whether a duty exists in this case is whether the duty to avoid conflicts with a client includes an attorney’s public service as a government official.3 Most situations involving a conflict of interest involve situations where an attorney-legislator votes or advocates positions that are favorable to the client’s interest. The issue addressed here is whether promoting the public official’s public agenda conflicts with the client’s interest, to whom an attorney owes a continuing duty of loyalty, independent of any duty as a public official. According to the Restatement (Third) of the Law Governing Lawyers, most reported decisions do not prohibit most legislative activity that might favor private clients except where prohibited by law. See Restatement (Third) of the Law Governing Lawyers § 135, reporter’s note cmt. f(i) (citing, e.g., Norton v. Tallahassee Mem’l Hosp., 689 F.2d 938 (11th Cir.1982)). The Model Code of Professional Responsibility and the Disciplinary Rules reflected the notion that an attorney-legislator may participate in legislative activities that are favorable to the client:
A lawyer who holds public office shall not ... [u]se his public position to obtain, or attempt to obtain, a special advantage in legislative matters for himself or for a client under circumstances where he knows or it is obvious that such action is not in the public interest.
Model Code of Prof’l Responsibility DR 8-101(A)(l) (1969).4 This Disciplinary [907]*907Rule allowed most activity and would be difficult to violate as an officeholder acting in the interest of his client. However, this rule did not address whether there is a conflict of interest when an attorney-legislator acts in his legislative capacity against the interest of his client.
Nevertheless, J & G contends that all Joe’s actions were as a legislator, not an attorney, and should be judged against the duties of a public official to the public. Joe states in his amended affidavit:
My position on the issue of multi-family housing in Irving is my own, based upon my own political beliefs, formulated in response to the desires of those who I believe elected me. I concluded that it was in the best interest of the City of Irving to impose and continue the mora-toria [on building and developing apartments] pending a comprehensive plan for development in the City.
J & G claims that because Joe’s duties are to the public, J & G has no duty to control his activities. This necessarily means that J & G would not be responsible for conflict checks for a partner who is also a public official. Accordingly, Joe could never have a conflict of interest between his public duties and J & G clients if he opposed the interest of those clients in his public service. This position ignores the fact that attorneys can have conflicts other than the representation of other clients. Section 135 of the Restatement (Third) of the Law Governing Lawyers articulates the prohibition of representation without appropriate disclosure to a client for conflicts that can occur when a lawyer has a fiduciary or other legal obligation to a nonclient:
Unless the affected client consents to the representation under the limitations and conditions provided in § 1225, a lawyer may not represent a client in any matter with respect to which the lawyer has a fiduciary or other legal obligation to another if there is substantial risk that the lawyer’s representation of the client would be materially or adversely affected by the lawyer’s obligation.
Restatement (ThiRd) of the Law Governing LawyeRS § 135. In commenting on the types of conflicts that can occur, the Restatement notes that “[p]ublic duties can impair the lawyer’s effective representation of private clients, requiring that the lawyer-official not represent the affected client, withdraw from the representation, or obtain effective consent.” Id. § 135, cmt. (f)i.
The Texas Disciplinary Rules of Professional Conduct recognize conflicts of interest that occur because of responsibilities other than to another client:
[A] lawyer shall not represent a person if the representation of that person ... reasonably appears to be or become adversely limited by the lawyer’s or law firm’s responsibilities ... to a third person or by the lawyer’s or law firm’s own interests.
Tex. Disciplinaey R. Prof’l Conduct 1.06(b)(2). The comments reflect the difficulty of assessing conflicts of interest in contexts other than litigation. Tex. Disciplinary R. Prof’l Conduct 1.06, cmt. 13. The relevant factors to be considered in determining the potential for conflict causing an adverse effect in nonlitigation conflict situations include:
[908]*908• the duration and intimacy of the lawyer’s relationship with the client or clients involved,
• the functions being performed by the lawyer,
• the likelihood that actual conflict will arise, and
• the likely prejudice to the client from the conflict if it does arise.
Id. Further, Disciplinary Rule 1.13(a) provides:
A lawyer serving as a director, officer or member of a legal services, civic, charitable or law reform organization, apart from the law firm in which the lawyer practices, shall not knowingly participate in a decision or action of the organization ... if participating in the decision would violate the lawyer’s obligations to a client under Rule 1.06[.]
Tex. DisciplinaRY R. Prof’l Conduct 1.13(a).6 Although the Texas disciplinary rules do not specifically discuss a lawyer’s conflicts with positions that might be taken when holding public office, the duty of loyalty and the prevention of conflicts between a lawyer’s personal or civic interest and the interests of a client are recognized duties.7
Alternatively, J & G contends that any conflict of interest concerning Joe’s activities as a city council member would be governed exclusively by the Local Government Code. Section 171.004(a) of the code provides that a public official who has a substantial interest in a business entity or real property shall not participate in a vote or decision in any matter involving that entity or property if the action on the matter of the business entity will have a special economic effect on the entity that is distinguishable from the effect on the public, or it is reasonably foreseeable that an action on the matter of the real property will have a special economic effect on the value of the property distinguishable from its effect on the public. Tex. Loc. Gov’t Code Ann. § 171.004(a)(1), (2) (Vernon 1999). • This provision addresses situations in which a public official’s personal interest conflicts with the public interest. But it does not address when a public official’s position conflicts with his client’s interest. While the statute further states that the chapter on conflicts preempts the common law of conflicts of interest as applied to local public officials, id. § 171.007 (Vernon 1999), the context of the chapter only deals with the ability of the local public official to vote on an issue and the validity of the vote. Here, the validity of Joe’s moratorium vote is not questioned. No conflict with the public interest is being litigated. The statute does not preempt all other duties a public official may have as a private citizen. Therefore, whether Joe had a conflict of interest with 239 JV is not determined by the statute. Accordingly, we review the summary judgment evidence to determine whether it raises a fact issue on breach of an attorney’s duty to avoid conflicts of interest with a client.
239 JWs summary judgment evidence demonstrates that J & G’s representation of the joint venture in the sale of the [909]*909property began in 1992 and continued through June 1996, as reflected in J & G’s billing records. The purpose of J & G’s representation was to provide legal assistance in selling the property for apartment development. However, there is evidence that, during this representation, Joe organized, advocated, and voted against apartment development that, in effect, actively stopped 289 JV’s sale of its apartment property. No attempt was made to determine whether this position would affect clients of the firm. Expert testimony was presented that the nondisclosure of the conflict was a breach of the standard of care. See Jatoi v. Decker, Jones, McMackin, Hall & Bates, 955 S.W.2d 430, 433 (Tex.App.—Fort Worth 1997, pet. denied) (noting expert testimony required to establish compliance with attorney’s standard of care and citing Hall v. Rutherford, 911 S.W.2d 422, 424 (Tex.App.—San Antonio 1995, writ denied)). This summary judgment evidence raises a fact issue on whether the functions being performed by the law firm would conflict with and be prejudiced by Joe’s activity. Contrary to the dissent’s claim that there was no conflict because J & G did not represent 239 JV before the city council on zoning matters, we conclude the evidence raises a fact issue on whether Joe’s activities on behalf of the moratorium prejudiced 239 JV’s interests in regards to the particular matter on which J & G represented 239 JV, the sale of the property for apartment development, and whether this prejudice is a breach of duty to the firm’s client. See Tex. DisciplináRY R. PROf’l Conduct 1.06, cmt. 13. Thus, the evidence is sufficient to raise a fact issue concerning breach of the standard of care and breach of fiduciary duty and duty of loyalty.
Proximate Cause
Breach of duty or standard of care is not sufficient without the breach being the proximate cause of an injury to the client. In a malpractice claim, a party must prove both cause-in-fact and foreseeability to show proximate cause. Hall v. Stephenson, 919 S.W.2d 454, 465-66 (Tex. App.—Fort Worth 1996, writ denied) (citing Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775 (Tex.1995)). Cause-in-fact means that the defendant’s act or omission was a substantial factor in bringing about the injury that would not otherwise have occurred. Prudential Ins. Co. v. Jefferson Assocs. Ltd., 896 S.W.2d 156, 161 (Tex. 1995). Foreseeability means that the actor should have anticipated injury to others. Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex.1992) (op. on reh’g).. Foreseeability does not require that the actor anticipate the precise consequences of his actions. Id.
Because there is no dispute about foreseeability, we need only consider whether there is any evidence about cause-in-fact. J & G argues that because the council’s vote causing the moratorium was unanimous, Joe’s actions were not the cause of the canceled contract for the sale of the apartment property, and the moratorium on apartment development would have occurred anyway. However, 239 JV presented evidence that if it had been informed of the conflict caused by the support of the moratorium, it could have filed a plat and “grand-fathered” the apartment tract from the effects of any moratorium. The sale could have been completed. In a deposition, Art Hewitt, a 239 JV representative, stated that Joe should have told his partners handling 239 JV’s business that the moratorium was coming up, he was supporting it, and clients should be informed and let them take appropriate action. According to Hewitt, another development project was able to obtain exemption from the moratorium. There was also evidence that Joe and J & G told 239 JV represen[910]*910tatives that the firm would help in obtaining a waiver from the moratorium after the September 1994 vote, allowing 239 JV to pursue other sales. Thus, there is evidence raising a fact issue that failure to disclose the conflict between Joe’s advocacy and the client’s economic interest — not the moratorium itself — caused economic harm to 239 JV.
This is contrary to the dissent’s assertion that the outcome was inevitable because of the unanimous city council vote. “Whether 239 JV could have known of the special meeting and the agenda would not reheve J & G of any conflict caused by its attorneys’ involvement in anti-apartment development and pro-moratorium activities to the detriment of the sale of 239 JVs property. Joe prejudiced his firm’s clients’ interests by failing to inform the firm of the conflict between the client’s interest and his support for the moratorium “in the public interest.” That prejudice could have been avoided. This evidence is sufficient to raise a fact issue on cause-in-fact.
Damages
The law requires a necessary showing of a causal relation between the act complained of and the injury sustained. See Brown v. Edwards Transfer Co., 764 S.W.2d 220, 223-24 (Tex.1988). Generally, the proper measure of damages in a legal malpractice case is that amount of damages that would have been collectible but for the wrongful act or omission of the attorney. Gibson v. Johnson, 414 S.W.2d 235, 238-39 (Tex. Civ.App.— Tyler 1967, writ refd n.r.e.). Because this case involves the failure of a sales transaction as a result of Joe’s alleged wrongful acts and omissions, the damages suffered by appellants would be economic. The measure of damages in a commercial relations tort may be “economic,” although they are damages for the tort. Am. Nat’l Petroleum Co. v. Transcon. Gas Pipe Line Corp., 798 S.W.2d 274, 278 (Tex.1990) (measure of actual damages for tortious interference with contract same as measure of damages for breach of the contract interfered with). In this malpractice case, 239 JV seeks restoration to the position in which it would have been had the sale been completed. Generally, a party is entitled to all actual damages necessary to put it in the same economic position in which it would have been had the contract been fulfilled. See id.; Abraxas Petroleum Corp. v. Hornburg, 20 S.W.3d 741, 760 (Tex.App.—El Paso 2000, no pet.). Damages protect three interests: a restitution interest, a reliance interest, and an expectation interest. O’Farrill Avila v. Gonzalez, 974 S.W.2d 237, 247 (Tex.App.—San Antonio 1998, pet. denied) (op. on reh’g). A party’s expectation interest is measured by his anticipated receipts and losses caused by the breach less any cost or other loss he has avoided by not having to perform. Lafarge Corp. v. Wolff, Inc., 977 S.W.2d 181, 187 (Tex.App.—Austin 1998, pet. denied) (citing Restatement (Second) of Contracts § 347 (1981)); Coon v. Schoeneman, 476 S.W.2d 439, 441 (Tex.Civ.App.—Dallas 1972, writ refd n.r.e.). To restore an injured party to the position in which he would have been had the contract been performed, it must be determined what additions to the injured party’s wealth have been prevented by the breach and what subtractions from his wealth have been caused by it.8 See Interceramic, Inc. [911]*911v. S. Orient R.R. Co., 999 S.W.2d 920, 927-28 (Tex.App.—Texarkana 1999, pet. denied); Lafarge Corp., 977 S.W.2d at 187; Mistletoe Express Serv. v. Locke, 762 S.W.2d 637, 638 (Tex.App.—Texarkana 1988, no writ).
239 JV presented evidence through an expert that the loss of the sale cost it $119,770 in carrying costs and that the reasonable value of investing the proceeds from the sale would have produced a rate of return calculated by the rates of return on an average investment or another 239 JV investment opportunity. The total estimated damages were between $1,442,157 and $1,939,590.
To withstand no evidence review, “[a]t a minimum, opinions or estimates of lost profits must be based on objective facts, figures, or data ... [and][r]eeovery of lost profits must be predicated on one complete calculation.” See Szczepanik v. First S. Trust Co., 883 S.W.2d 648, 649 (Tex.1994) (per curiam). The expert’s affidavit contained not only the statements of the expert but also attached documentation showing the damages calculation based on the proceeds that would have been realized had the sale been completed. We conclude the evidence is sufficient to raise a fact issue as to the damages 239 JV sustained.
Thus, we conclude that 239 JV presented evidence to create a fact issue concerning the causes of action against J & G.
Waiver
Notwithstanding, J & G responds that the evidence shows that 239 JV continued to use the services of J & G after the conflict of interest with Joe’s position was apparent. The firm claims this is a waiver of the conflict or at least a waiver of an action against the firm.
First, waiver of a conflict of interest requires a client’s consent before the attorney takes the conflicting position or represents the adverse client. Here, there was no notice to and no consent by 239 JV prior to Joe’s advocacy or votes for the moratorium. Thus, 239 JVs continued representation by J & G is no evidence of consent to the conflict.
Next, for 239 JV to have waived its action against J & G, the summary judgment evidence must show 239 JV had (1) an existing right, benefit, or advantage; (2) actual or constructive knowledge of its existence; and (3) an actual intent to relinquish the right (which can be inferred from conduct). Dallas Area Rapid Transit v. Dallas Morning News, 4 S.W.3d 469, 475-76 (Tex.App.—Dallas 1999, no pet.); see Tenneco Inc., 925 S.W.2d at 643. Intent is the key element in establishing waiver. G.H. Bass & Co. v. Dalsan Properties-Abilene, 885 S.W.2d 572, 577 (Tex.App.—Dallas 1994, no writ); Vessels v. Anschutz Corp., 823 S.W.2d 762, 765 (Tex.App.—Texarkana 1992, writ denied); FDIC v. Attayi 745 S.W.2d 939, 947 (Tex.App.—Houston [1st Dist.] 1988, no writ). The law on waiver distinguishes between a showing of intent by actual renunciation and a showing of intent based on inference. Attayi 745 S.W.2d at 947. In the latter situation, it is the burden of the party who is to benefit by a showing of waiver to produce conclusive evidence that the opposite party unequivocally manifested its intent to no longer assert its claim. [912]*912Id. This is a particularly onerous burden. Id.
Ordinarily, the issue of waiver is a question of fact. See Dallas Area Rapid Transit, 4 S.W.3d at 475. Where facts are clearly established and are undisputed, however, waiver becomes a question of law. See id. at 475-76.
Here, there is no unequivocal assertion that 239 JV was abandoning any claim against the law firm. J & G’s evidence is that 239 JV continued to use J & G’s legal sendees and did not immediately pursue any claim against it. 239 JV presented evidence through the deposition testimony of Art Hewett and the affidavit of Richard Strauss that 239 JV remained with the firm because J & G’s executive committee was going to try to resolve the moratorium situation. Thus, 239 JV raised a fact issue concerning waiver of its causes of action.
IMMUNITY DEFENSES
As grounds for the summary judgment, J & G alleged Joe’s possible defenses of legislative and official immunity. Legislative immunity protects only those duties that are functionally legislative. Bowles, 920 S.W.2d at 758. Courts have consistently recognized a distinction between the legislative act of establishing a policy, act, or law and the nonlegislative act of enforcing or administering that policy, act, or law. Id. J & G points to the votes for the moratorium, the apartment development, and the extensions, characterizing them as legislative acts that determine policy. Whether Joe, and consequently J & G, would be immune from the damage from the vote does not address the duty to disclose conflicts of interest to a client. Legislative immunity is only a shield for legislative duties, not for the private duties of an attorney to his client. Here, the actual vote is evidence of the conflict with the client’s interest, not the basis of liability. Likewise, the defense of official immunity only shields persons from suits complaining of official acts. Bonham, 744 S.W.2d at 692-93. The acts complained about were the continued representation without disclosure of the conflict with 239 JVs interests. Those are not official acts but acts of an attorney. Therefore, J & G did not conclusively demonstrate any immunity defense.
Because 239 JV presented evidence on each element of its malpractice claim and J & G failed to conclusively demonstrate any immunity defense or waiver, we conclude the trial court improperly granted summary judgment in J & G’s favor. Therefore, we sustain 239 JVs third point of error.
CONCLUSION
Having sustained 239 JV’s first and third points of error, we reverse the trial court’s grant of summary judgment in Joe’s favor and in J & G’s favor and remand 239 JVs causes of action against them for farther proceedings.