In 2015, the Supreme Court of Texas decided Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477 (Tex. 2015), clarifying what is known as the “attorney immunity doctrine.” Essentially, the doctrine posits that, “as a general rule, attorneys are immune from civil liability to non-clients ‘for actions taken in connection with representing clients in litigation.’” Id. at 481 (citations omitted). This means that a party cannot sue the opposing lawyer even for wrongful conduct so long as the conduct occurs in the course of the client representation.
For many years, the intermediate appellate courts struggled with the proper application of attorney immunity to allegations of fraud by attorneys. Several of these courts carved out what they called a “fraud exception” to attorney immunity, holding that a party could sue the opposing lawyer for fraudulent acts. The exception was based on the view that fraudulent conduct always is foreign to an attorney’s duties.
The trouble with this exception was that it permitted parties to plead around the attorney immunity doctrine. Through creative pleading, parties could allege what they termed “fraudulent” conduct by the attorney—even when it occurred in connection with routine litigation tasks—and claim an exception from the attorney immunity doctrine.
In Byrd, the Supreme Court clarified that simply labeling an attorney’s conduct as “fraudulent” does not exempt it from application of the attorney immunity doctrine. Instead, the inquiry focuses on whether the conduct occurred within the scope of the attorney’s representation of the client. If it did, then the attorney immunity doctrine applies regardless of the wrongful nature or extent of the conduct.
Although Byrd unquestionably clarified some aspects of the attorney immunity doctrine, it left other important questions unanswered. The most notable open question is whether the doctrine should be limited to litigation conduct. Byrd was a 5-4 decision, and the four dissenters argued for a limitation to litigation.
This remains an open question under Texas law. Moreover, if the doctrine is limited to litigation, it remains to be seen precisely how “litigation” would be defined. One would expect that, at a minimum, it would include acts taken in anticipation of or preparation for litigation.
Finally, Texas courts likely will have to determine whether a small number of potential claims can be maintained against an opposing attorney despite the attorney immunity rule. For example, it seems clear that attorney immunity does not prohibit a claim for negligent misrepresentation. That claim is founded on a duty outside the attorney-client relationship. Whether any similar claims—founded on independent duties—survive Byrd remains to be seen.
For now, Texas litigants should know that in almost all circumstances, they cannot sue the opposing party’s lawyer—even for what might be viewed as reprehensible acts taken in the course of representing the client.