Highland Capital Management, LP v. Looper Reed & McGraw, P.C., N/K/A Gray Reed & McGraw, P.C. ( 2015 )

ACCEPTED
05-15-00055-CV
FIFTH COURT OF APPEALS
DALLAS, TEXAS
12/15/2015 5:45:49 PM
LISA MATZ
CLERK
Johnston Tobey Baruch, P.C.
Trial & Appellate Lawyers
3308 Oak Grove Avenue FILED IN
5th COURT OF APPEALS
Dallas, Texas 75204 DALLAS, TEXAS
12/15/2015 5:45:49 PM
(214) 741-6260
LISA MATZ
chad@jtlaw.com Clerk
December 15, 2015
By E-Filing
Lisa Matz, Clerk
Fifth District Court of Appeals
600 Commerce Street, Second Floor
Dallas, Texas 75202
RE: Highland Capital Management, L.P. v. Looper Reed & McGraw, P.C.
No. 05-15-00055-CV
Dear Ms. Matz:
Please circulate this post-submission letter to Justices Lang, O’Neill, and
Brown.
Under Byrd, if a lawyer acts within the scope of client representation in the
litigation context, and does the types of things lawyers normally do—regardless of
whether the lawyer carries them out wrongfully—the lawyer is immune from
claims by the opposing party. All of the conduct alleged is the type performed by
lawyers.
1. Attorney immunity applies to actions connected with litigation—not just
acts taken between the date of filing and the date of final judgment.
Even courts restricting attorney immunity to litigation apply it where
“actions were in the context of an adversarial dispute in which litigation was
contemplated, impending, or actually ongoing.” Reagan Nat’l Advertising of
Austin, Inc. v. Hazen, No. 03-05-00699-CV, 2008 WL 2938823 (Tex. App.—
Austin July 29, 2008, no pet.) (mem. op.). Highland’s petition establishes that
litigation was “impending” when Looper Reed acted. Moreover, Byrd concerned
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the drafting of a bill of sale more than a year after entry of final judgment—yet the
Supreme Court deemed this work to have occurred in the litigation conduct.
2. Byrd identified only three exceptions—none of which apply.
Highland does not allege that Looper Reed entered into a fraud scheme with
Daugherty separate from the litigation representation (like in Poole), drafted any
fraudulent document in the transactional context (like in Essex Crane), or punched
anyone during trial (or, to use Justice Brown’s colorful example, had anyone
“whacked”). These are the only exceptions identified in Byrd.
3. We are talking only about civil liability.
Lawyers who commit criminal acts still must answer for their conduct in
criminal and grievance proceedings.
4. Other courts have applied attorney immunity to similar conduct and
claims.
During oral argument, Highland argued that “telling someone you will
disclose their confidential information” necessarily falls outside the scope of
attorney immunity. But in Alpert, the court applied attorney immunity to dismiss a
claim for aiding and abetting breach of fiduciary duty based on appropriating and
actually disclosing proprietary information to benefit the client. Alpert v. Crain,
Caton & James, P.C., 178 S.W.3d 398, 403-04 (Tex. App.—Houston [1st Dist.]
2005, pet. denied). Looper Reed’s statement allegedly occurred during settlement
negotiations. Negotiating settlement is the type of conduct in which lawyers
engage. Whether Looper Reed engaged in that conduct wrongfully has nothing to
do with whether attorney immunity applies to this case.
5. McCamish has nothing to do with this case.
In McCamish, the Supreme Court carved out an exception to privity for
claims of negligent misrepresentation. Highland did not assert any such claim.
6. The allegations are not plausible anyway.
The Houston and Fort Worth courts now have applied 12(b)(6) pleadings
standards under Rule 91a. Zheng v. Vacation Network, Inc., No. 14-13-01136-CV,
2015 WL 3424702 (Tex. App.—Houston [14th Dist.] May 28, 2015, no pet. h.);
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Drake v. Chase Bank, No. 02-13-00340-CV, 2014 WL 6493411 (Tex. App.—Fort
Worth Dec. 31, 2014, no pet.) (citation omitted). As explained in Looper Reed’s
brief, Highland’s allegations—based solely on a reading of its petition—are not
plausible (and, indeed, are conclusory, lacking in necessary detail, and at times
internally inconsistent). As a result, their claim lacks any basis in law regardless of
the conduct alleged.
Respectfully,
/s/Charles “Chad” Baruch
Certificate of Compliance
This letter was prepared using Microsoft Word. Relying on the word count
function in that software, I certify that it contains 550 words excluding the
certificates.
/s/Charles “Chad” Baruch
Certificate of Service
The undersigned certifies that a true and correct copy of this instrument was
served this 15th day of December, 2015, by efiling and email, upon the following
counsel of record for appellant:
Paul B. Lackey
pbl@lhlaw.net
Jamie R. Welton
jrw@lhlaw.net
Lawrence Lee Budner
llb@lhlaw.net
Lackey Hershman, L.L.P.
3102 Oak Lawn Avenue, Suite 777
Dallas, Texas 75219-4241
/s/Charles “Chad” Baruch
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