Friday, May 13, 2016

The Scope of Attorney Immunity in Texas

By Steve Stapleton

In a recent decision, the Fifth Circuit Court of Appeals has concluded that the immunity enjoyed by attorneys in Texas is not merely a qualified immunity but is a true immunity from suit. 1

Recognizing that the Supreme Court of Texas “has never stated as much,” the Fifth Circuit nevertheless held that “attorney immunity is properly characterized as a true immunity from suit, not [merely] as a defense to liability.  Two related considerations inform this conclusion:  the polices underlying the doctrine of attorney immunity, and comparison with similar Texas-law doctrines that we have held to be true immunities.”

First, the doctrine of attorney immunity “stem[s] from the broad declaration … that ‘attorneys are authorized to practice their profession, to advise their clients and interpose any defense or supposed defense, without making themselves liable for damages.’”  Id., citing Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 484 (Tex. 2015).  The immunity held by attorneys in Texas is designed “to ensure ‘loyal, faithful, and aggressive representation by attorneys employed as advocates.’”  Id. quoting Mitchell v. Chapman, 10 S.W.3d 810, 812 (Tex.App. – Dallas 2000, pet. denied).  Such immunity is necessary to “avoid the inevitable conflict that would arise if [an attorney] were ‘forced constantly to balance his own potential exposure against his client’s best interest.’”  Id., quoting Alpert v. Carin, Caton & James, PC, 178 S.W.3d 398, 405 (Tex. App. – Houston [1st Dist.] 2005, pet. denied).

Second, said the Court, the purpose of such immunity shares the characteristics of other true immunities such as judicial immunity, prosecutorial immunity and the litigation privilege.  “All share an objective of safeguarding the unfettered exercise of judgment in the judicial system by protecting the person exercising it not only against liability but also against incurring the costs of defending a lawsuit.  All therefore protect against imperiling ‘a substantial public interest’: the effective functioning of our adversary system [citations omitted].  Nothing indicates that Texas courts view the protections afforded attorneys in private practice as less important to that system than those afforded prosecutors, judges and those making statements before judicial, quasi-judicial, or legislative proceedings.”  Troice, supra.

In bolstering its conclusions, the Fifth Circuit cited Shanks v. AlliedSignal, Inc., 169 F.3d 988, 992 (5th Cir. 1999).  There the Court concluded that the litigation privilege provided true immunity and thus an order denying the immunity was appealable.
The Fifth Circuit noted a Texas court’s description of those privileged communications as being “not actionable.”  Id. at 992.  The Fifth Circuit noted another Texas court’s description of the doctrine as providing “absolute[e] immun[ity] from civil liability.  Id.  And finally, the Court noted that the Texas Supreme Court, in finding no fraud exception to the doctrine of attorney immunity, described attorney immunity in the exact same way:  conduct covered by attorney immunity is “not actionable;” as such, the doctrine “provide[s] immun[ity] from civil liability.”  Cantey Hanger, 467 S.W.3d at 481.

And it’s no argument to claim that the doctrine is not a true immunity merely because it is an affirmative defense.  Other true immunities are also affirmative defenses under Texas law.  City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994).  Nor is the conclusion derailed because attorneys must sometime engage in discovery to determine if they are entitled to the immunity.  Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012).  “That no Texas court has held that defendants asserting attorney immunity are categorically exempt from discovery, then, does not mean that attorney immunity is merely a defense to liability.”  Troice, supra at 7-8.

The conclusion is plain:  conduct covered by the attorney immunity doctrine is not actionable and attorneys engaging in that conduct are immune from suit.  Attorney immunity is a true immunity designed to protect a substantial public interest – to ensure the “loyal, faithful and aggressive representation by attorneys employed as advocates.”
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1   Troice v.Proskauer Rose, LLP, et al., Case No. 15-10500 (5th Cir., March 10, 2016).
 

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