Cantey Hanger, Llp v. Philip Gregory Byrd, Lucy Leasing Co., L.L.C., and Pgb Air, Inc. ( 2015 )

IN THE SUPREME COURT OF TEXAS
444444444444
NO . 13-0861
444444444444
CANTEY HANGER, LLP, PETITIONER,
v.
PHILIP GREGORY BYRD, LUCY LEASING CO., L.L.C., AND PGB AIR , INC.,
RESPONDENTS
4444444444444444444444444444444444444444444444444444
ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE SECOND DISTRICT OF TEXAS
4444444444444444444444444444444444444444444444444444
JUSTICE GREEN joined by CHIEF JUSTICE HECHT , JUSTICE JOHNSON , and JUSTICE WILLETT ,
dissenting.
The Court holds that Cantey Hanger conclusively established its affirmative defense of
attorney immunity because its alleged conduct occurred within the scope of its representation of
Simenstad in the divorce proceeding. ___ S.W.3d ___, ___. While I agree with much of the Court’s
description of the attorney immunity doctrine and the purposes underlying it, I think the Court
overlooks an important element of the form of attorney immunity at issue in this case—that the
attorney’s conduct must have occurred in litigation—and applies the attorney immunity doctrine in
a manner that results in a much broader, more expansive liability protection. I would hold that
Cantey Hanger’s summary judgment evidence failed to conclusively establish that its alleged conduct
occurred in litigation and that summary judgment was therefore improper. I would affirm the court
of appeals’ judgment.
The circumstances in which lawyers may be subject to civil liability to nonclients are wide
and varied. See, e.g., RESTATEMENT (THIRD ) OF THE LAW GOVERNING LAWYERS § 56 (2000) (“[A]
lawyer is subject to liability to a client or nonclient when a nonlawyer would be in similar
circumstances.”). To ensure that attorneys may practice their profession effectively and zealously
advocate for their clients without subjecting themselves to claims from nonclients, rules have
developed to protect certain attorney conduct from civil liability. To fully understand these rules and
the effect of the Court’s opinion on them, it is important to review the development of the attorney
immunity doctrine.
In Texas, the attorney immunity doctrine, as it applies to litigation or other related
proceedings, has developed under two closely related legal theories.1 The first, on which the Court
purports to rely, originated more than a century ago with 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.” Kruegel v. Murphy, 126 S.W. 343, 345
1
There are additional legal theories that preclude liability for an attorney’s otherwise actionable conduct. For
example, the rule of privity generally prevents third parties from suing an attorney for legal malpractice in any context.
See McCamish, Martin, Brown & Loeffler v. F.E. Appling Interests, 991 S.W .2d 787, 792 (Tex. 1999) (recognizing the
general rule and an exception to the general rule based on an attorney’s negligent misrepresentations); Barcelo v. Elliott,
923 S.W .2d 575, 577–79 (Tex. 1996). Moreover, a third party’s reliance on an attorney’s representations made in certain
adversarial contexts might be unjustified as a matter of law. See Chu v. Hong, 249 S.W .3d 441, 446 n.19 (Tex. 2008);
McCamish, Martin, Brown & Loeffler, 991 S.W .2d at 794 (“Generally, courts have acknowledged that a third party’s
reliance on an attorney’s representation is not justified when the representation takes place in an adversarial context.”).
For other possible examples of immunities or defenses available to an attorney, the comments to the Restatement (Third)
of the Law Governing Lawyers section 56 and the entirety of section 57 are instructive. Because there are multiple legal
theories that might preclude an attorney’s liability, I believe that parties and courts should clearly articulate the theory
and authority on which they rely because the label “attorney immunity”— as Cantey Hanger asserted here—is imprecise.
2
(Tex. Civ. App.—Dallas 1910, writ ref’d). Because the courts of appeals analyzing attorney
immunity under Kruegel generally require the attorney’s conduct to have occurred in the litigation
context, I refer to this theory as “litigation immunity.” See, e.g., Renfroe v. Jones & Assocs., 947
S.W.2d 285, 287–88 (Tex. App.—Fort Worth 1997, writ denied); Bradt v. West, 892 S.W.2d 56, 72
(Tex. App.—Houston [1st Dist.] 1994); Morris v. Bailey, 398 S.W.2d 946, 947–48 (Tex. Civ.
App.—Austin 1966, writ ref’d n.r.e.). Under the second theory, although not raised expressly here
but nevertheless important to the context of attorney immunity in Texas, any statement made in the
due course of or in serious contemplation of a judicial or quasi-judicial proceeding is absolutely
privileged and cannot serve as the basis for a defamation lawsuit. Shell Oil Co. v. Writt, ___ S.W.3d
___, ___ (Tex. 2015); James v. Brown, 637 S.W.2d 914, 916 (Tex. 1982) (per curiam). I refer to this
theory as the “judicial proceedings privilege.”
Nearly thirty years before Kruegel, this Court adopted the Texas Commission of Appeals’
opinion in Poole v. Houston & T.C. Railway Co., 58 Tex. 134 (1882). In that case, a seller sought
to stop the shipment of goods that had been sold on credit to an insolvent buyer. Id. at 135. The
buyer and its attorney then engaged in a fraudulent scheme designed to prevent the seller from
stopping the shipment. See id. at 135, 137. In its simplest form, the scheme required the buyer to
fraudulently assign a bill of lading to the attorney, the attorney to intercept the goods by presenting
the fraudulent bill of lading to a railroad station agent, and the attorney to return the goods to the
buyer. See id. Following the successful execution of the scheme, the seller sued the attorney for
fraud and tried the lawsuit to a jury. See id. The trial court charged the jury “that, to make the
defendant [attorney] liable, it must be shown by the evidence that he was acting, not as agent of [his
3
client], but for himself.” Id. This Court held that the trial court’s charge was erroneous because it
stated that the attorney could not be liable for fraud committed at the behest of his principal. Id. at
137–38. More important to the issue presented today, the Court held that the attorney was not
immune from civil liability because his fraudulent scheme was “entirely foreign to the duties of an
attorney.” Id. at 137.
The opinion in Kruegel was authored against this backdrop. In Kruegel, the plaintiff sued
a law firm for “conspiracy, fraud, and perjury of defendants and their counsel . . . by which plaintiff
wrongfully and unlawfully suffered an adverse judgment wholly beyond his control.” Kruegel, 126
S.W. at 344. Specifically, the plaintiff alleged that the attorneys and other defendants “knew that
plaintiff had a good, legal, valid, and meritorious cause of action,” and that the defendants defeated
the plaintiff’s underlying cause of action through “concerted action and undue influence and
unlawful misuse and usurpation of power of a court.” Id. The plaintiff further alleged that the
defendants, knowing that the plaintiff would pursue an appeal, “unlawfully conspired . . . to defeat
plaintiff’s appeal.” Id. The trial court sustained the law firm’s special exceptions, and the court of
appeals affirmed. Id. at 344–45. In doing so, the court of appeals held 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. at 345.
A comparison of Kruegel and Poole is critical to understanding the context in which
litigation immunity applies. In both cases, the attorney or law firm allegedly engaged in conduct that
would be actionable without attorney immunity. The only meaningful distinction between the
outcomes is the context in which that conduct occurred. In Kruegel, the conduct occurred in
4
litigation, while in Poole the conduct occurred outside of any litigation. In my view, the only way
to reconcile these cases and give meaning to the purpose behind attorney immunity is to require the
defendant–attorney’s conduct to have occurred in litigation.
Despite clearly announcing litigation immunity’s existence, the court in Kruegel did little to
define its scope and this Court has not, until today, readdressed the issue. The courts of appeals,
however, have agreed with my view of Kruegel and Poole and generally require the attorney’s
conduct to have occurred in litigation for litigation immunity to apply. See, e.g., Renfroe, 947
S.W.2d at 287–88; Bradt, 892 S.W.2d at 72; Morris, 398 S.W.2d at 947–48. Moreover, the courts
of appeals require the attorney’s conduct to involve the provision of legal services. See, e.g., Gaia
Envtl., Inc. v. Galbraith, 451 S.W.3d 398, 404 (Tex. App.—Houston [14th Dist.] 2014, pet. denied)
(noting that litigation immunity would not apply if an attorney were to physically assault the
opposing parting during trial); Bradt, 892 S.W.2d at 72 (same). To address the type of concern
raised in Gaia Environmental, Inc., federal courts applying Texas law require the attorney’s conduct
to involve “the office, professional training, skill, and authority of an attorney.” See, e.g., Miller v.
Stonehenge/Fasa–Tex., JDC, L.P., 993 F. Supp. 461, 464 (N.D. Tex. 1998) (citing Taco Bell Corp.
v. Cracken, 939 F. Supp. 528, 532 (N.D. Tex. 1996)). The courts of appeals have extended litigation
immunity to both an attorney’s conduct and statements. See, e.g., Alpert v. Crain, Caton & James,
P.C., 178 S.W.3d 398, 405 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) (statements and
conduct); Morris, 398 S.W.2d at 947 (conduct).
The policy reasons behind litigation immunity compel the conclusion that, to be entitled to
litigation immunity, the defendant–attorney’s conduct must have occurred in litigation. One of the
5
most well-known maxims of the legal profession is that attorneys must zealously advocate for their
clients. See Bd. of Law Exam’rs v. Stevens, 868 S.W.2d 773, 780 (Tex. 1994) (describing how the
Texas Disciplinary Rules of Professional Conduct require attorneys to zealously represent their
clients). The courts of appeals have universally reasoned that litigation immunity furthers this goal.
See, e.g., Alpert, 178 S.W.3d at 405; Renfroe, 947 S.W.2d at 288. Without this immunity, an
attorney’s zealous advocacy at trial would be diluted because the attorney would be forced to balance
her own interests against those of her client. See, e.g., Renfroe, 947 S.W.2d at 288; Bradt, 892
S.W.2d at 72. Ultimately, litigation immunity promotes the ends of justice by ensuring that attorneys
can fully develop their clients’ cases and pursue all of their clients’ rights at trial. See Morris, 398
S.W.2d at 947–48. Limiting the application to statements or conduct in litigation serves this ultimate
goal without being overly broad and immunizing attorneys for conduct arising from fraudulent
business schemes.2 See Poole, 58 Tex. at 137. A limited application of litigation immunity also has
the benefit of maintaining procedural safeguards that apply only in litigation. See, e.g., TEX . R. CIV .
P. 13 (requiring all of the pleadings, motions, and other papers attorneys file in the lawsuit be signed,
certifying that the attorney has read them and believes that they are not groundless and brought in
bad faith or to harass, and authorizing sanctions for an attorney’s violation of the rule); TEX . CIV .
PRAC. & REM . CODE §§ 9.001–.014, 10.001–.006 (allowing for sanctions and the offended party’s
recovery of expenses).
2
I agree with the Court’s holding that there is no “fraud exception” to litigation immunity. The immunity either
applies because the defendant–attorney’s conduct occurred in litigation, or it does not apply at all.
6
The Court recognizes that this form of attorney immunity traditionally applies in the litigation
context and purportedly requires Cantey Hanger’s alleged conduct to have occurred in the divorce
proceeding.3 See ___ S.W.3d at ___ n.6. But the Court conducts very little analysis to determine
whether Cantey Hanger’s alleged conduct actually occurred in litigation. Instead, the Court
summarily concludes that Cantey Hanger’s “alleged conduct was within the scope of its
representation of Simenstad in the divorce proceedings, was not foreign to the duties of an attorney,
and is thus protected by attorney immunity.” Id. at ___. This conclusory analysis constitutes no
analysis at all, and is, in actuality, merely a scope-of-representation test. This scope-of-
representation test cannot be the law, or almost anything an attorney does would be protected from
civil liability. This is not the law in Texas and is inconsistent with the approach the Restatement
3
The Court also suggests that this form of attorney immunity applies outside of the litigation context. ___
S.W .3d at ___ n.6. I therefore briefly address the inadequate basis for the Court’s suggestion. The two unpublished
cases the Court cites are either distinguishable or were erroneously decided. The first, Campbell v. Mortgage Electronic
Registration System, Inc., No. 03-11-00429-CV, 2012 W L 1839357 (Tex. App.— Austin May 18, 2012, pet. denied)
(mem. op.), held that an attorney was entitled to litigation immunity for his conduct relating to his representation of a
lender in a non-judicial foreclosure proceeding. See id. at *6. However, the Campbell court’s statement of the applicable
law relied on cases that limit the application of the immunity to “litigation,” “lawsuits,” or situations in which the attorney
may be sanctioned by a court. See id. at *5 (citations omitted). The Campbell court then implicitly recognized litigation
immunity’s contextual requirement when it concluded that “[n]either the Campbells’ petition nor their response to the
motion to dismiss alleged that the Attorney Defendants committed any wrongful acts outside of the foreclosure
proceedings.” See id. at *5–6 (emphasis added). The wording of the court’s holding, coupled with the fact that
foreclosure proceedings employ specific notice and process protections and may become highly adversarial, demonstrate
that the Campbell court recognized litigation immunity’s contextual requirement. See T EX . P RO P . C O D E § 51.002
(mandating that any foreclosure must involve notice to the borrower, occur at a specific time and place (often a
courthouse), and provide notice of the sale to the public). The second case the Court relies on, Reagan National
Advertising of Austin, Inc. v. Hazen, No. 03-05-00699-CV, 2008 W L 2938823 (Tex. App.— Austin July 29, 2008, no
pet.) (mem. op.), is also unavailing. There, the court of appeals stated that the attorney immunity doctrine was not
“limited to [the litigation] setting,” but tempered its statement by holding that the summary judgment evidence
established the attorney’s alleged conduct occurred in “an adversarial dispute in which litigation was contemplated,
impending or actually ongoing.” Id. at *8. The Hazen court’s holding harkens to this Court’s jurisprudence addressing
the judicial proceedings privilege, which applies only in limited contexts. See Shell Oil Co., ___ S.W .3d at ___; James,
637 S.W .2d at 916–17; see also discussion infra at ___. Therefore, the Hazen court’s statement that the immunity’s
application was not “limited to [the litigation] setting” provides no support at all.
7
adopted. See Chu, 249 S.W.3d at 446 (Tex. 2008) (“An attorney who personally steals goods or tells
lies on a client’s behalf may be liable for conversion or fraud in some cases.”); cf. RESTATEMENT
(THIRD ) OF THE LAW GOVERNING LAWYERS § 56 cmt. c (2000) (“[A] lawyer is not always free of
liability to a nonclient for assisting a client’s act solely because the lawyer was acting in the course
of a representation.”).
The outcome of this case is dictated by its procedural posture. This case comes to the Court
on review of the trial court’s grant of Cantey Hanger’s motion for traditional summary judgment on
its affirmative defense of attorney immunity. The Court correctly states that a party moving for
traditional summary judgment has the burden to conclusively prove its affirmative defense, and that
reviewing courts “take as true all evidence favorable to the nonmovant, and . . . indulge every
reasonable inference and resolve any doubts in the nonmovant’s favor.” ___ S.W.3d at ___ (quoting
Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005)). However, a correct
application of this standard of review to the summary judgment evidence before us requires a
different result.
Cantey Hanger supported its motion with the affidavits of two of its attorneys who swore that
Cantey Hanger was “retained to represent Ms. Simenstad in her divorce proceeding,” including
pursuing post-judgment remedies and claims against Byrd’s estate in bankruptcy, and that all of its
actions “were made in the course and scope of representing Ms. Simenstad.” Cantey Hanger also
included the divorce decree in the summary judgment record. The divorce decree awarded
Simenstad three aircraft, made Simenstad responsible for the ad valorem taxes, liens, or assessments
8
associated with the aircraft, and required Simenstad’s attorneys—by then Cantey Hanger—to prepare
any documents necessary to effectuate the transfer of the airplanes within ten days of its entry.
In response to the motion for summary judgment, the plaintiffs submitted an affidavit in
which Byrd swore that Simenstad had never been an owner, officer, manager, or director of Lucy
Leasing or PGB Air. He also swore that “Cantey Hanger was to draft the documents to effectuate
the transfer of the airplane for me to sign on behalf of Lucy Leasing,” and that “Simenstad sold one
of the airplanes that was awarded to her in the Divorce Decree” over one year after the entry of the
divorce decree. Further, Byrd swore that Simenstad signed the bill of sale as a “manager” of Lucy
Leasing, which made Lucy Leasing liable for the sales tax incurred by the transaction.
This summary judgment evidence is lacking. The divorce degree was a final judgment that
terminated the underlying divorce litigation, see Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195
(Tex. 2001) (stating that final judgments dispose of all pending parties and claims), and merely
establishes that the parties had litigated a divorce that resulted in each party being awarded certain
property. Although divorce litigation arguably could be extended by pursuing post-judgment
remedies or an appeal or even by executing documents required by a divorce decree, the summary
judgment evidence here does not conclusively establish that Cantey Hanger’s alleged conduct
occurred in any such extended litigation.4 The affidavits reveal nothing about whether Cantey
Hanger’s actions related to any post-judgment remedies or enforcement actions. Even assuming that
preparation and execution of documents as provided for in a divorce decree could continue the
4
Because of my view of the evidence, I need not address whether or to what extent such post-judgment actions
might extend the litigation.
9
litigation, Cantey Hanger’s alleged drafting of the bill of sale was not the type of transfer document
the divorce decree contemplated. The divorce decree contemplated a transfer from Lucy Leasing (a
company awarded to Byrd under this decree) to Simenstad within ten days of its entry. Although the
trial court struck the bill of sale and we may not consider it, it is uncontroverted in the summary
judgment evidence that the airplane was sold more than a year later and the purchaser was a third
party. It is also uncontroverted that Simenstad signed the bill of sale, although she may have signed
under the Byrd surname and as a manager of Lucy Leasing. The fact remains that the divorce decree
contemplated only documents to transfer ownership of the plane from Lucy Leasing to Simenstad,
not documents to effectuate a sale from Simenstad to a third party. That the allegedly fraudulent sale
may have potential tax implications for a company awarded to Byrd under the divorce decree is
inconsequential because, under this record, the litigation had ended and the decree did not address
the subsequent sale to third parties of property awarded in the divorce decree.5
Viewing this evidence in the light most favorable to and indulging every reasonable inference
in favor of the plaintiffs, I cannot conclude, as the Court does, that Cantey Hanger conclusively
established that its alleged conduct occurred in litigation. Rather, the summary judgment evidence
allows for the reasonable inference that Cantey Hanger’s drafting of the bill of sale, if it occurred as
the plaintiffs allege, constituted participation in a fraudulent business scheme that took place well
after the divorce litigation ended. I therefore conclude that this case is similar to Poole, under which
5
In my view, it is nonsensical to hold that Cantey Hanger met its summary judgment burden to establish that
its conduct occurred in litigation based on the plaintiffs’ response to Cantey Hanger’s motion for summary judgment and
the attached affidavit alleging tax consequences as a result of the alleged conduct. Cantey Hanger’s motion and evidence
did not mention taxes or assert any such connection to the divorce litigation.
10
the Court held that an attorney was not immune for his involvement in a fraudulent business scheme
that arose out of an arguably adversarial relationship between a seller and an insolvent buyer.6 See
Poole, 58 Tex. at 135, 137.
My conclusion that Cantey Hanger failed to conclusively establish that its alleged conduct
occurred in litigation is supported by a comparison to the context in which the judicial proceedings
privilege applies.7 The judicial proceedings privilege is not raised directly, but because Cantey
Hanger’s motion for summary judgment raised attorney immunity generally, it is helpful to consider
6
The Court faults this approach, arguing that it improperly focuses on whether the conduct was meritorious.
See ___ S.W .3d at___. W hile it is true that the focus must be on the type of conduct, and not whether that conduct was
meritorious, this principle guides courts only in determining whether the alleged conduct involved the provision of legal
services, not whether the conduct occurred in litigation. See Bradt, 892 S.W .2d at 72 (explaining that if an opposing
attorney assaulted the plaintiff during trial, the assault “would not be part of the discharge of the attorney–appellee’s
duties in representing a party in the lawsuit”). Limiting the type-of-conduct principle to this purpose finds support in
this Court’s opinion in Poole. In that case, the attorney’s presentation of a bill of lading— a document of legal
significance— was certainly squarely in the scope of the attorney’s representation, but was nevertheless determined to
be part of a fraudulent business scheme. See Poole, 58 Tex. at 135, 137. I look to all of the evidence surrounding Cantey
Hanger’s alleged drafting of the bill of sale— also a document of legal significance— and conclude that the alleged
drafting occurred outside of litigation. I do not infer or conclude that the alleged drafting did not involve the provision
of legal services, and therefore do not run afoul of the type-of-conduct principle.
7
I note that this Court has previously recognized attorney immunity based on the judicial proceedings privilege
only for defamation claims, a claim not brought in this case. However, several other jurisdictions have extended the
application of their judicial proceedings privilege to both statements and conduct. See, e.g., Echevarria, McCalla,
Raymer, Barrett & Frappier v. Cole, 950 So. 2d 380, 380–81 (Fla. 2007); Price v. Armour, 949 P.2d 1251, 1258 (Utah
1997). Moreover, other jurisdictions allow their judicial proceedings privilege to shield against causes of action other
than defamation. See, e.g., Mehaffy, Rider, Windholz & Wilson v. Cent. Bank Denver, N.A., 892 P.2d 230, 235, 237
(Colo. 1995) (all causes of action except for malicious conduct, fraud, and negligent misrepresentation); Simms v.
Seaman, 69 A.3d 880, 890–91 (Conn. 2013) (all causes of action except for malicious prosecution, abuse of process,
and vexatious litigation); Echevarria, McCalla, Raymer, Barrett & Frappier, 950 So. 2d at 380–81 (all causes of action);
Price, 949 P.2d at 1258 (intentional interference with business relationships, and noting in dicta that the privilege should
apply to all causes of action); Clark v. Druckman, 624 S.E.2d 864, 872 (W . Va. 2005) (all causes of action except for
malicious prosecution and fraud). The effect of the Court’s opinion in this case may be an extension of the judicial
proceedings privilege to post-proceeding conduct.
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the context in which the privilege applies and the policy underlying it.8 Regarding context, the
judicial proceedings privilege requires the attorney’s or law firm’s statements to have been made in
the due course of or in serious contemplation of a judicial proceeding or quasi-judicial proceeding.
See Shell Oil Co., ___ S.W.3d at ___. This can be established with proof that the statement was
made: (1) in the due course of any aspect of a judicial proceeding, including “open court, pre-trial
hearings, depositions, affidavits and any of the pleadings or other papers in the case,” see James, 637
S.W.2d at 916–17; (2) in the due course of “proceedings before executive officers, and boards and
commissions which exercise quasi-judicial powers,” Reagan v. Guardian Life Ins. Co., 166 S.W.2d
909, 912 (Tex. 1942); or (3) in serious contemplation of a judicial or quasi-judicial proceeding, Shell
Oil Co., ___ S.W.3d at ___. Here, Cantey Hanger’s affidavits do not indicate whether there was an
ongoing judicial or quasi-judicial proceeding, nor do they indicate that Cantey Hanger’s conduct
occurred in “open court, pre-trial hearings, depositions, affidavits[,] any of the pleadings or other
papers in the case,” or any other aspect of a proceeding. See James, 637 S.W.2d at 916–17. Nor do
the affidavits indicate that Cantey Hanger’s conduct occurred in serious contemplation of a judicial
or quasi-judicial proceeding. See Shell Oil Co., ___ S.W.3d at ___. Cantey Hanger did not establish
the applicability of the judicial proceedings privilege, just as it did not establish the applicability of
litigation immunity.
The Court holds that attorney immunity shields Cantey Hanger from liability arising from
its alleged drafting of the bill of sale more than a year after entry of the divorce decree. Instead of
8
As it relates to attorneys, the judicial proceedings privilege “is based upon a public policy of securing to
attorneys as officers of the court the utmost freedom in their efforts to secure justice for their clients.” R ESTATEM ENT
(S ECO N D ) O F T O RTS § 586 cmt. a (1977).
12
limiting this form of attorney immunity to the context of litigation, the Court’s cursory analysis
implicitly adopts a test in which attorneys are shielded from civil liability to nonclients if their
conduct merely occurs in the scope of client representation or in the discharge of duties to the client.
This holding enlarges the scope of litigation immunity in a manner that does not comport with its
purpose and protects attorneys from liability for conduct involving a transaction foreign to the
plaintiffs and the divorce court and outside the context of litigation. This test is not supported by
Poole or Kruegel, is contrary to every published court of appeals opinion on the subject, and has
been flatly reject by the Restatement. See RESTATEMENT (THIRD ) OF THE LAW GOVERNING
LAWYERS §§ 56 cmt. c, 57 (2000).9
Moreover, the Court’s holding that Cantey Hanger’s alleged conduct is not actionable creates
a troubling jurisdictional dichotomy on remand. On one hand, the court of appeals’ holding that the
plaintiffs’ fraud claims against Simenstad for “conspir[ing] with Cantey Hanger to falsify an airplane
bill of sale . . . are not claims attempting to enforce the terms of the decree” and are therefore not
within the continuing, exclusive jurisdiction of the divorce court, 409 S.W.3d at 776, remains intact
because it was not challenged on appeal. On the other hand, the Court holds that the plaintiffs’ fraud
claims against Cantey Hanger, which are based on the same transaction, are barred because the
alleged conduct was within the scope of its representation of Simenstad in the divorce proceeding.
___ S.W.3d at ___. Based on the Court’s opinion today and the unchallenged portion of the court
9
Texas has not adopted sections 56 or 57 of the Restatement of the Law Governing Lawyers, but the substance
of those provisions is consistent with Chu, Kruegel, and Poole. See Chu, 249 S.W .3d at 446 (recognizing that attorneys
may be held liable for conversion and fraud in some cases); Kruegel, 126 S.W . at 345 (recognizing a circumstance when
an attorney is not liable for fraud); Poole, 58 Tex. at 135, 137 (recognizing a circumstance when an attorney is liable
for fraud).
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of appeals’ judgment, Simenstad’s alleged conduct regarding the sale of the plane is separate from
the divorce proceeding for purposes of the trial court’s jurisdiction, but her attorneys’ alleged
conduct regarding the same transaction is a part of the divorce proceeding for purposes of attorney
immunity. This inconsistent results begs the question of whether the trial court on remand actually
has jurisdiction over the claims against Simenstad, as the court of appeals held, or whether those
claims are within the divorce court’s continuing, exclusive jurisdiction.
For its alleged conduct to be protected by attorney immunity, Cantey Hanger must have
conclusively established that its alleged conduct occurred in litigation. I would hold that Cantey
Hanger did not meet its summary judgment burden and, on this record, the attorney immunity
doctrine provides Cantey Hanger no protection from the plaintiffs’ fraud, conspiracy, and aiding and
abetting claims stemming from the allegedly falsified bill of sale. I would affirm the court of
appeals’ judgment.
_______________________________________
Paul W. Green
Justice
OPINION DELIVERED: June 26, 2015
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