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Sep 18, 2015

Attorney Immunity Wins Again

By: Jackie Cooper

A divided Texas Supreme Court recently reversed the Court of Appeals and upheld a trial court’s grant of summary judgment for law firm, Cantey Hanger, based on the long-standing doctrine of attorney immunity. 

In Cantey Hangar, LLP v. Byrd,[1] the underlying matter was a divorce proceeding between Philip Byrd and Nancy Simenstad.  Cantey Hanger represented Simenstad.  The divorce decree assigned Simenstad responsibilities related to transferring an airplane to Byrd, including handling taxes.  Byrd, the non-client, sued Cantey Hanger, claiming that the attorneys transferred ownership of the airplane in such a way as to cause tax liabilities that violated the divorce decree. 

The trial court granted Cantey Hangar’s summary judgment based on attorney immunity.  The Court of Appeals reversed, explaining that the sale of the airplane was unrelated to the divorce decree.  The Supreme Court disagreed.

The majority relied on well-known precedent on attorney immunity, including Alpert v. Crain and Renfroe v. Jones[2] to defend the proposition that the actions at issue, even if wrongful, were taken by the attorneys in the scope of their representation of their client in divorce proceedings.  Justice Lehrmann, citing Renfroe, wrote that “an attorney’s conduct may be wrongful but still fall within the scope of client representation.”  Further, “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.’” 

For now it seems that lawyers in the state of Texas will still have the benefit of attorney immunity, even if their conduct is alleged to be wrongful, if they engaged in that conduct while representing their client.  As always, the Court leaves some room for interpretation on a case-by-case basis and has certainly not addressed attorney immunity for the last time.

However, lest you think that attorneys have carte blanche to act unchecked in their advocacy for their clients, the Court also communicated this – while wrongful conduct may not land you in the civil courthouse defending a private cause of action by a non-client, there is no shortage of other options to address bad behavior by attorneys, including sanctions, contempt, and disciplinary proceedings.

[1] Cantey Hangar, LLP v. Byrd, No. 13-0861, 2015 WL 3976267 (Tex. June 26, 2015), reh'g denied (Sept. 11, 2015)

[2] Alpert v. Crain, Caton & James, P.C., 178 S.W.3d 398, 405 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) and Renfroe v. Jones & Assocs., 947 S.W.2d 285, 287–88 (Tex. App.—Fort Worth 1997, pet. denied)