All Texas lawyers who are sworn-in by a judge after passing the Texas bar exam agree to “zealously represent their clients.” The degree and scope of that zealousness is not unlimited, however, and sometimes attorneys can get into trouble when being over-zealous in their investigative efforts or using evidence secured by others for the benefit of the attorney’s client. Last month, the Texas Supreme Court in Terisa Taylor v. Carl Tolbert, et al., considered whether a Texas attorney could be held liable for violations of both federal and state criminal wiretap statutes by using emails and other electronic evidence secured by others. The underlying case concerned a modification of a child custody arrangement, and the evidence in question concerned e-mails and other electronic information on the mother’s iPad that was provided to the father’s attorney by another family member and used during the modification hearing. The mother sued the father’s lawyer for using such evidence, claiming the evidence was secured in violation of both federal and state criminal wiretap statutes. The wiretap statutes, although criminal in nature, allow for civil redress or remedies in the case of violation.

At issue in the case was the applicability of Texas’s common-law attorney immunity defense. In general, a Texas attorney is immune from prosecution if his/her conduct is committed during the course of the client’s representation. The public policy behind the common-law attorney immunity defense aims to foster zealous representation of clients without fear of retaliatory or other prosecution. The Texas Supreme Court held that with respect to the Texas wiretap statute, the defense protected the father’s lawyer in using the electronic evidence (secured by another family member) in the child custody modification proceeding because the language of that statute did not expressly, nor by implication, defeat the attorney immunity defense (which was satisfied under the facts of the case). However, because the federal wiretap statute was worded differently, the Texas Supreme Court ruled that the common-law attorney immunity defense would not necessarily protect the father’s lawyer, and therefore remanded the case back to the trial court for further consideration.

Although the underlying case was a family law-related matter, this issue could arise in a number of different civil proceedings, depending on how the evidence was secured and used. Thus, attorneys need to be careful in using evidence secured by others, especially without the attorney’s direction.

About the Author: Jonathan Spigel

Jonathan M. Spigel is a Shareholder and member of the Cowles and Thompson Tort Litigation Practice Group.