Clients expect their attorneys to zealously represent them.  To do so, lawyers must be free from concerns that others who are not their clients will second-guess them or sue them for taking legal actions on behalf of their clients. 
Fortunately for both clients and their lawyers, Texas lawyers are shielded by attorney immunity from most suits by non-clients.  In Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477 (Tex. 2015), the Texas Supreme Court held that conduct by an attorney that is “part of the discharge of his duties to his client” is immune from claims by non-clients.  The Court explained that the doctrine "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.'"  The rule of immunity is "intended to ensure 'loyal, faithful, and aggressive representation by attorneys employed as advocates'" and 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.'"

In Troice v. Proskauer Rose, L.L.P., 816 F.3d 341, 348 (5th Cir. 2016), the Fifth Circuit concluded  that the Texas Supreme Court would view attorney immunity as a true immunity from suit, conferring a right not merely to avoid standing trial, but also to avoid the burdens of pretrial discovery.  The court also held that attorney immunity is not limited to certain potential plaintiffs, like opposing parties.  “Attorney immunity is intended to assure attorneys that they will not be ‘liable for damages,’ full stop.”
        In Troice v. Greenberg Traurig, L.L.P., 921 F.3d 501, 506-08 (5th Cir. 2019), the circuit court considered Texas court decisions since Cantey Hanger and concluded that attorney immunity is not limited to litigation, but also applies to other forms of legal work like drafting contracts.  The court rejected the notion that immunity could be rendered inapplicable if a non-client labeled their claim as being for alleged “criminal” conduct.  It held that the relevant question is whether the attorney’s behavior was undertaken in the course of representation of, and discharge of duties to, the client.  If it was, then the attorney is immune from suits by third parties regardless of the labels they put on them.  It remains unclear, however, what kind of actions by an attorney would be found to be outside the course of legal representation of a client.  The court also held that immunity is applicable to both statutory and common law claims.

Immunity doesn’t protect attorneys from everything.  Attorneys are subject to many layers of control for bad behavior.  They can be sanctioned by a court or a bar association for misconduct or unethical behavior.  If they break the law, they can be charged with a crime by state or federal authorities.  They can be sued for actions that are not the kind of conduct that an attorney engages in when discharging duties to a client.  They can be sued by their clients if they commit legal malpractice.  But, it is best for clients if their lawyers are not looking over their shoulders at possible lawsuits from non-clients.  Attorney immunity allows attorneys to concentrate on representing their clients loyally, aggressively, and passionately.

By Published On: October 14, 2019Categories: Commercial LitigationTags:


Avatar of Sim Israeloff
Sim Israeloff is a Senior Shareholder with more than 30 years of trial experience, and is Section Head of the Cowles and Thompson Commercial/Business Litigation Practice Group.