Wednesday, October 21, 2015

Supreme Court Clarifies Attorney Immunity (Sim Israeloff)

By Sim Israeloff

You are an attorney.  You represent a client in challenging litigation.  Then the opposing party sues you personally to try and punish you.  An attorney is normally immune from suits by an opponent they did not represent.  But your opponent labels what you did “fraudulent” and thus outside of attorney immunity.  Can they do that?
 
No.  The Texas Supreme Court has resolved a split in lower courts on the so-called fraud exception to attorney immunity for actions in litigation:

An attorney is given latitude to “pursue legal rights that he deems necessary and proper” precisely to avoid the inevitable conflict that would arise if he were “forced constantly to balance his own potential exposure against his client’s best interest.” [citing cases] Merely labeling an attorney’s conduct “fraudulent” does not and should not remove it from the scope of client representation or render it “foreign to the duties of an attorney.”  

The focus is on the nature of the attorney’s acts.  An attorney who proves “that his alleged wrongful conduct, regardless of whether it is labeled fraudulent, is part of the discharge of his duties to his client,” is immune from suit by the opponent or other third parties.

Cantey Hanger, LLP v. Byrd, 2015 Tex. LEXIS 619; 58 Tex. Sup. J. 1400 (June 26, 2015).
 

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