Terisa Taylor v. Carl Tolbert, Nizzera Kimball and Vivian Robbins

Supreme Court of Texas
══════════
No. 20-0727
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Terisa Taylor,
Petitioner,
v.
Carl Tolbert, Nizzera Kimball and Vivian Robbins,
Respondents
═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Fourteenth District of Texas
═══════════════════════════════════════
Argued February 1, 2022
JUSTICE DEVINE delivered the opinion of the Court.
Under Texas law, attorneys are generally immune from civil
liability to nonclients for actions taken within the scope of legal
representation if those actions involve “the kind of conduct” attorneys
engage in when discharging their professional duties to a client. 1 In
recent years, we have had several occasions to consider the scope of this
common-law immunity defense. When presented with the question, we
1 See Landry’s, Inc. v. Animal Legal Def. Fund, 631 S.W.3d 40, 51 (Tex.
2021); Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 482 (Tex. 2015).
have held that the immunity inquiry focuses on the function and role
the lawyer was performing, not the alleged wrongfulness, or even
asserted criminality, of the lawyer’s conduct. 2 The nuance presented
here is whether an exception exists for private-party civil suits asserting
that a lawyer has engaged in conduct criminalized by statute.
We hold that, when conduct is prohibited by statute, the
attorney-immunity defense is neither categorically inapplicable nor
automatically available, even if the defense might otherwise cover the
conduct at issue. In such cases, whether an attorney may claim the
privilege depends on the particular statute in question. That being so,
the attorney in this case is only entitled to partial immunity on civil
claims alleging she violated state and federal wiretap statutes by “using”
and “disclosing” electronic communications illegally “intercepted” by her
client and others. Immunity attaches to the state claims because the
Texas wiretap statute does not expressly, or by necessary implication,
abrogate the immunity defense, and the attorney met her burden to
establish its applicability to the conduct at issue. But immunity does
not attach to the federal claims because the federal wiretap statute is
worded differently, and informative federal authority (sparse as it is)
persuades us that federal courts would not apply Texas’s common-law
attorney-immunity defense to a claim under that statute. We thus
affirm the court of appeals’ judgment that the attorney-immunity
defense is inapplicable to the federal wiretap claims but reverse and
render judgment for the attorney on the state wiretap claims.
2Bethel v. Quilling, Selander, Lownds, Winslett & Moser, P.C., 595
S.W.3d 657-58 (Tex. 2020); Youngkin v. Hines, 546 S.W.3d 675, 681 (Tex. 2018);
Cantey Hanger, 467 S.W.3d at 481 & 485.
2
I. Background
The underlying dispute originates from a child-custody
modification proceeding between Mark Broome and Vivian Robbins
regarding their child, N.B. Attorney Terisa Taylor represented Broome
in the highly acrimonious family-law case.
In the midst of the modification proceeding, 3 N.B. visited her
aunt, Fiona McInally, in the summer of 2013. At some point, an iPad
belonging to McInally began receiving text messages and emails
between Robbins and at least thirty other individuals, all of whom were
unaware this was happening and none of whom consented. How this
happened remains something of a mystery, but there appears to be no
dispute that N.B. had signed into her aunt’s iPad using Robbins’s email
address and password to download an app. After discovering the text
messages, McInally or her husband (Broome’s brother) mailed the iPad
to Broome, who obtained Robbins’s text messages and emails from the
iPad and shared them with Taylor for use in the modification
proceeding.
Robbins and several of her interlocutors, including Carl Tolbert
and Nizzera Kimball, 4 sued Taylor and others for violating the federal
and Texas wiretap statutes. 5 Wiretapping is a criminal offense under
3Although the allegations in this civil suit are disputed, the applicable
standard of review requires us to accept the allegations as true. City of
Magnolia 4A Econ. Dev. Corp. v. Smedley, 533 S.W.3d 297, 301 (Tex. 2017).
We relay them accordingly.
4 The other plaintiffs are not parties to this appeal.
5The other defendants, including Broome, have since settled, leaving
Taylor the sole remaining defendant.
3
federal and state law, 6 but both statutory schemes permit private
parties to pursue civil redress for violations of the penal statutes. 7 The
federal statute provides a civil cause of action for “any person whose
wire, oral, or electronic communication is intercepted, disclosed, or
intentionally used in violation of this chapter[.]” 8 Texas likewise grants
a private right of action for “[a] person whose wire, oral, or electronic
communication is intercepted, disclosed, or used in violation of” certain
statutes, including Chapter 16 of the Penal Code and Chapter 18A of the
Code of Criminal Procedure. 9 Robbins, Tolbert, and Kimball
(collectively, Robbins) alleged that Taylor had improperly “used” and
“disclosed” illegally “intercepted” electronic communications in the
following particulars:
• received the text messages and emails her client, Broome,
shared with her;
• produced a CD containing data from the iPad to Robbins’s
attorney;
• told opposing counsel that “she and her client were in
possession of everything Ms. Robbins had communicated to
others, including a nude photograph that Ms. Robbins had
sent via text message to her boyfriend”;
• told opposing counsel that she intended to use the nude
photograph as a poster-size demonstrative in the jury trial;
6 18 U.S.C. § 2511(1); TEX. PENAL CODE § 16.02.
7 18 U.S.C. § 2520(a); TEX. CODE CRIM. PROC. art. 18A.502.
8 18 U.S.C. § 2520(a).
9 TEX. CODE CRIM. PROC. art. 18A.502(1). Chapter 18A and Chapter 16
of the Penal Code prohibit wiretapping.
4
• told opposing counsel to advise Robbins to “sign an agreed
order resolving the custody case and agreeing to supervised
visitation only or this evidence would be used against her”;
• “filed an unusual pleading entitled ‘Notice of Intent to Use
Demonstrative Evidence’[,] which said that Mark Broome
intended to use . . . [a] ‘Power Point presentation and large
photo board’” at trial;
• for at least six months, “used information gleaned from the
illegally intercepted communications in several family
court hearings and to conduct discovery in the child
custody modification case . . . prior to Ms. Robbins
becoming aware of the interception,” which she learned
about when Taylor produced 617 pages of Robbins’s text
messages to her attorney and when Broome filed a pleading
referencing the content of Robbins’s email messages;
• “[repeatedly] used and disclosed the contents of those
intercepted electronic communications to the court and in
[] pleadings in the modification case”;
• “provided Fiona McInaly’s [sic] iPad to Pathway Forensics,
LLC for examination”; 10 and
• used the illegally intercepted communications on
McInally’s iPad to obtain a court order authorizing
Pathway Forensics to make a copy of Robbins’s electronic
devices. 11
10Pathway Forensics is a computer forensics company that Broome had
retained as an expert witness. Robbins sued Pathway, and the court of appeals
ruled favorably to Robbins on those claims, but Pathway did not file a petition
for review in this Court. Taylor and Robbins report that the claims against
Pathway have been settled.
11 The trial court ordered Pathway to “properly and noninvasively
create backup images of all drives and media in the custody of [Robbins], via
her I-phone/cell phones [sic], I-Pad [sic], Laptop and/or home computer, that
5
Notably, the petition does not allege any facts suggesting that Taylor
played a role in the alleged “interception” of Robbins’s electronic
communications or that she advised Broome or others to take these
actions. Rather, the factual allegations against Taylor are limited to her
“use” and “disclosure” of those communications in the modification
proceeding.
Taylor moved for traditional summary judgment solely on the
pleadings, arguing she is immune from liability as a matter of law
because the plaintiffs’ claims all stem from her role as an attorney in the
modification proceeding. 12 The trial court agreed and rendered a
take-nothing summary judgment for Taylor.
In a split decision, the court of appeals reversed and remanded. 13
After noting that our attorney-immunity decisions in Cantey Hanger,
LLP v. Byrd 14 and Youngkin v. Hines 15 neither “involved alleged
criminal conduct by an attorney” nor extended attorney immunity to
criminal conduct, the majority summarily determined that “[a] criminal
violation of either [the federal or state wiretap] statute would be ‘foreign
to the duties of an attorney’ and thus precludes application of
attorney[]immunity.” 16
may contain electronic data relevant to the issues in this matter, except any
attorney client privilege matters.”
12 See TEX. R. CIV. P. 166a(c).
13 629 S.W.3d 318, 327, 334 (Tex. App.—Houston [14th Dist.] 2020).
14 467 S.W.3d 477 (Tex. 2015).
15 546 S.W.3d 675 (Tex. 2018).
16 629 S.W.3d at 327.
6
Examining our attorney-immunity precedent in more detail, the
dissent found the majority’s holding to be directly adverse to Bethel v.
Quilling, Selander, Lownds, Winslett & Moser, P.C., 17 in which we
rejected the invitation to create a “criminal conduct” exception to the
attorney-immunity defense and applied the defense to litigation conduct
alleged to be criminal in nature. 18 The dissent then cited two
independent reasons to affirm summary judgment for Taylor. First, the
dissent declared Robbins’s petition fatally deficient in failing to plead
facts showing Taylor had engaged in conduct violating the wiretap
statutes. 19 As to that matter, the dissent noted the absence of factual
allegations showing (1) “contemporaneous acquisition of the
communication when it was sent,” as required to establish an
“interception,” and (2) that Taylor knew, should have known, or was
reckless in disregarding that the communications had been
“intercepted,” as required to make “use” or “disclosure” of “intercepted”
communications impermissible. 20 Second, even if Robbins had pleaded
sufficient facts to state a claim under the wiretap statutes, Taylor’s
alleged conduct fell directly within the scope of her representation of
Broome in the modification proceeding and was not “foreign to the duties
17 595 S.W.3d 651 (Tex. 2020).
18 629 S.W.3d at 339-40 (Frost, C.J., dissenting).
19 Id. at 345. Taylor did not argue or brief that issue here or in the
courts below, so we do not address it.
20Id. at 341-45 & nn.64-78; see, e.g., Babb v. Eagleton, 616 F. Supp. 2d
1195, 1206 (N.D. Okla. 2007) (“[I]f no unlawful interception initially occurred,
there can be no liability for subsequent use or disclosure of the interceptions
by Attorney and Law Firm.”).
7
of an attorney.” 21 Applying Bethel, which the majority failed to discuss
or cite, the dissent concluded that, as a matter of law, attorney immunity
protects Taylor from civil liability because the conduct about which
Robbins complains involved Taylor’s rendition of legal services to a
client in the course of litigation. 22
We granted Taylor’s petition for review to further refine the
boundaries of the attorney-immunity defense. The principal matter in
dispute is whether the immunity defense applies to alleged conduct that,
if proven, is criminalized by statute.
II. Discussion
As the summary-judgment movant on an affirmative defense,
Taylor bears the burden of conclusively establishing that attorney
immunity bars the plaintiffs’ recovery on the claims asserted. 23 “The
only facts required to support an attorney-immunity defense are the
type of conduct at issue and the existence of an attorney–client
relationship at the time” the attorney engaged in the conduct. 24 We
must then decide “the legal question of whether said conduct was within
the scope of representation.” 25 Because Taylor moved for summary
judgment on the pleadings, we must take the allegations in Robbins’s
21 629 S.W.3d at 345 (Frost, C.J., dissenting).
22 Id. at 345-46.
23 Cantey Hanger, 467 S.W.3d at 481; Provident Life & Accident Ins. Co.
v. Knott, 128 S.W.3d 211, 215-16 (Tex. 2003).
24 Youngkin, 546 S.W.3d at 683.
25 Id.
8
petition as true, and we will uphold summary judgment for Taylor only
if she is entitled to judgment as a matter of law. 26
A. Scope of Attorney-Immunity Defense
The common-law attorney-immunity defense applies to lawyerly
work in “all adversarial contexts in which an attorney has a duty to
zealously and loyally represent a client” but only when the claim against
the attorney is based on “the kind of conduct” attorneys undertake while
discharging their professional duties to a client. 27 Stated inversely, if
an attorney engages in conduct that is not “lawyerly work” or is “entirely
foreign to the duties of a lawyer” or falls outside the scope of client
representation, the attorney-immunity defense is inapplicable. 28
In determining whether conduct is “the kind” immunity protects,
the inquiry focuses on the type of conduct at issue rather than the
alleged wrongfulness of that conduct. 29 But when the defense applies,
counsel is shielded only from liability in a civil suit, not from “other
mechanisms” that exist “to discourage and remedy” bad-faith or
wrongful conduct, including sanctions, professional discipline, or
criminal penalties, as appropriate. 30
26Perry v. S.N., 973 S.W.2d 301, 303 (Tex. 1998); see City of Magnolia
4A Econ. Dev. Corp., 533 S.W.3d at 301; TEX. R. CIV. P. 166a(c).
27 Haynes & Boone, LLP v. NFTD, LLC, 631 S.W.3d 65, 67 (Tex. 2021);
see, e.g., Landry’s, 631 S.W.3d at 47; Cantey Hanger, 467 S.W.3d at 481.
28 Landry’s, 631 S.W.3d at 47, 51-53; Youngkin, 546 S.W.3d at 681.
29 Landry’s, 631 S.W.3d at 47.
30E.g., Bethel, 595 S.W.3d at 657-58; Youngkin, 546 S.W.3d at 679,
682-83; Cantey Hanger, 467 S.W.3d at 482, 484-86; Kruegel v. Murphy, 126
S.W. 343, 344-45 (Tex. App.—Dallas 1910, writ ref’d).
9
Conduct is not the kind of conduct attorney immunity protects
“simply because attorneys often engage in that activity” or because an
attorney performed the activity on a client’s behalf. 31 Rather, the
conduct must involve “the uniquely lawyerly capacity” and the
attorney’s skills as an attorney. 32 For example, a lawyer who makes
publicity statements to the press and on social media on a client’s behalf
does “not partake of ‘the office, professional training, skill, and authority
of an attorney’” because “[a]nyone—including press agents,
spokespersons, or someone with no particular training or authority at
all—can publicize a client’s allegations to the media.” 33 Immunity
attaches only if the attorney is discharging “lawyerly” duties to his or
her client. 34
A corollary to this principle is that attorneys will not be entitled
to civil immunity for conduct that is “entirely foreign to the duties of an
attorney.” “Foreign to the duties” does not mean something a good
attorney should not do; it means that the attorney is acting outside his
or her capacity and function as an attorney. 35 For that reason, whether
31 Landry’s, 631 S.W.3d at 52.
32See id. at 51-53 (emphasis added) (quoting Cantey Hanger, 467
S.W.3d at 482).
33 Id. at 51-52 (quoting Cantey Hanger, 467 S.W.3d at 482).
34 Cantey Hanger, 467 S.W.3d at 481.
35 E.g., Youngkin, 546 S.W.3d at 681; Cantey Hanger, 467 S.W.3d at 482,
487; see Poole v. Hous. & T.C. Ry. Co., 58 Tex. 134, 137 (1882) (holding that an
attorney who had assumed ownership of a third party’s goods “with the
intention of consummating [a] fraud” on a third party “will not be heard to deny
his liability to [the third party] for the loss sustained by reason of his wrongful
acts, under the privileges of an attorney at law, for such acts are entirely
10
counsel may claim the privilege turns on the task that was being
performed, not whether the challenged conduct was meritorious.
This is so because the interests of clients demand that lawyers
“competently, diligently, and zealously represent their clients’ interests
while avoiding any conflicting obligations or duties to themselves or
others.” 36 To prevent chilling an attorney’s faithful discharge of this
duty, lawyers must be able to pursue legal rights they deem necessary
and proper for their clients without the menace of civil liability looming
over them and influencing their actions. 37 Attorney immunity furthers
“loyal, faithful, and aggressive representation” by
“essentially . . . removing the fear of personal liability,” 38 thus
“alleviating in the mind of [an] attorney any fear that he or she may be
sued by or held liable to a non-client for providing . . . zealous
representation.” 39 In this way, the defense protects not only attorneys
but also their clients, who can be assured that counsel is representing
the client’s best interests, not the lawyer’s.
foreign to the duties of an attorney”); Dixon Fin. Servs., Ltd. v. Greenberg,
Peden, Siegmyer & Oshman, P.C., No. 01–06–00696–CV, 2008 WL 746548, at
*9 (Tex. App.—Houston [1st Dist.] 2008, pet. denied) (“The signing and filing
of an application for a temporary restraining order to aid in the recovery of
monies owed to a client under an arbitration award is not conduct ‘foreign to
the duties of an attorney’ and is the kind of conduct protected from liability.”).
36 Haynes & Boone, 631 S.W.3d at 79.
37 See Cantey Hanger, 467 S.W.3d at 483.
38 Youngkin, 546 S.W.3d at 682.
39 Haynes & Boone, 631 S.W.3d at 79.
11
Because the wrongfulness of the attorney’s conduct is not the
focus of the immunity inquiry, 40 we held in Cantey Hanger that conduct
alleged to be fraudulent does not necessarily fall outside the scope of the
attorney-immunity defense. 41 We explained that a “general fraud
exception” would “significantly undercut” the purposes of the defense 42
by allowing lawyers to be sued for discharging their lawyerly duties if
the plaintiff characterizes the attorney’s conduct as fraudulent. 43 But
“[m]erely 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.’” 44
In Bethel, we extended this principle to allegations of criminal
conduct. There, the plaintiff had urged us “to recognize an exception” to
attorney immunity “whe[n] a third party alleges that an attorney
engaged in criminal conduct during the course of litigation.” 45 We again
rejected the invitation to adopt an exception or state a categorical rule
because doing so would allow plaintiffs to avoid the attorney-immunity
defense through artful pleading—“by merely alleging that an attorney’s
Id. at 78; Bethel, 595 S.W.3d at 658; Youngkin, 546 S.W.3d at 681;
40
Cantey Hanger, 467 S.W.3d at 481.
41 467 S.W.3d at 484-86.
42 Id. at 483.
43 Landry’s, 631 S.W.3d at 47 (quoting Cantey Hanger, 467 S.W.3d at
482).
Bethel, 595 S.W.3d at 657 (alteration in original) (quoting Cantey
44
Hanger, 467 S.W.3d at 483-84).
45 Id.
12
conduct was ‘criminal.’” 46 Like the fraud exception that Cantey Hanger
declined to embrace, Bethel eschews a categorical exception for criminal
conduct because such an exception would defeat the purposes of the
attorney-immunity defense. 47 Instead, we held that conduct alleged to
be criminal in nature “is not categorically excepted from the protections
of attorney civil immunity when the conduct alleged is connected with
representing a client in litigation.” 48 As we explained there, a lawyer
who is doing his or her job is not more susceptible to civil liability just
because a nonclient asserts that the lawyer’s actions are fraudulent,
wrongful, or even criminal. 49
Even so, we acknowledged then, as we do now, that “there is a
wide range of criminal conduct that is not within the ‘scope of client
representation’ and [is] therefore ‘foreign to the duties of an attorney.’” 50
But when that is the case, the circumstances do not give rise to an
“exception” to the immunity defense; rather, such conduct simply fails
to satisfy the requirements for invoking the defense in the first
instance. 51 As Bethel makes clear, our approach to applying the
46 Id.
47 Id.
48 Id. (citations omitted).
49 Id. (quoting Youngkin, 546 S.W.3d at 681).
50 Id. at 658.
51 Id.
13
attorney-immunity defense remains functional, not qualitative, and
leaves an attorney’s improper conduct addressable by public remedies. 52
Robbins nonetheless campaigns for a “narrow exception” to
immunity for civil liability that arises from a statute criminalizing
conduct. As Robbins notes, none of our precedent has involved similar
claims, and she contends that a common-law defense, like attorney
immunity, cannot be engrafted onto a statutory scheme unless the
statute expressly adopts the defense. Separately, and in addition,
Robbins asserts that Taylor’s alleged conduct was “foreign to the duties
of an attorney” because it is criminal in nature. We address these
arguments below.
B. Application to Taylor’s Conduct
We first consider whether Taylor’s conduct is encompassed by the
attorney-immunity defense at all. This is a legal question we determine
from the facts Robbins has alleged, which we take as true under the
applicable standard of review. 53 Focusing only on “the kind” of conduct,
as we must, the standard for attorney immunity is easily satisfied on
the pleaded allegations because Taylor’s conduct was (1) within the
52 While the potential for sanctions, professional discipline, and
criminal responsibility might be equally, if not more, concerning to an attorney
than the potential for civil liability, the public oversight required to pursue
such penalties helps ensure that attorneys discharging their duties are not
subject to the threat of litigation by anyone who might take issue with the
attorney’s performance on behalf of his or her client in the course and scope of
legal representation. If an attorney’s conduct in his or her capacity as an
attorney is wrongful, recourse is public, not private.
53 See supra n.3.
14
scope of her representation of Broome in the modification proceeding
and (2) not foreign to the duties of a lawyer.
Acquiring materials from a client pertaining to a matter in
dispute and reviewing, copying, retaining custody of, analyzing, and
producing those materials are paradigmatically “the provision of ‘legal’
services involving the unique office, professional skill, training, and
authority of an attorney.” 54 So too is all the other conduct about which
Robbins complains. Using information acquired from a client to conduct
discovery, in pleadings, in communications with the court, and to obtain
a court order; attempting to use that information as demonstrative
evidence at trial; and providing materials to an expert witness all fall
squarely within the scope of Taylor’s representation of Broome in the
modification proceeding. 55 Likewise, making a demand on a client’s
behalf—such as Taylor’s insistence that Robbins sign a proposed order
resolving the dispute—is also within the realm of legal representation. 56
In engaging in these activities, Taylor acted on behalf of her client in a
54 Haynes & Boone, 631 S.W.3d at 78.
55Cf. Bethel, 595 S.W.3d at 658 (“Thus, at bottom, Bethel takes issue
with the manner in which Quilling examined and tested evidence during
discovery in civil litigation while representing Bethel’s opposing party. These
are paradigmatic functions of an attorney representing a client in litigation.”).
56See Youngkin, 546 S.W.3d at 684 (“The conduct Hines complains of—
negotiating and entering a settlement agreement . . . —falls within the scope
of Youngkin’s representation . . . and is not foreign to the duties of a lawyer.”);
Highland Cap. Mgmt., LP v. Looper Reed & McGraw, P.C., No. 05–15–00055–
CV, 2016 WL 164528, at *6 (Tex. App.—Dallas Jan. 14, 2016, pet. denied)
(mem. op.) (holding that actions including “making demands on the client’s
behalf, advising a client to reject counter-demands, speaking about an
opposing party in a negative light, advising a client on a course of action, and
even threatening particular consequences” are within the scope of an
attorney’s legal representation of a client).
15
lawyerly capacity because conducting discovery, filing pleadings,
obtaining court orders, and seeking the admission of evidence are the
kinds of actions that lawyers undertake in representing a client. Taylor
engaged in this conduct in connection with her duties as a lawyer in the
adversarial context of the modification proceeding where her client’s
objective was to secure enhanced custodial rights. 57
Considering all the allegations in Robbins’s petition, Taylor was,
in all respects, engaging in “the office, professional training, skill, and
authority of an attorney” in the ways that she allegedly used and
disclosed the materials her client provided. Because Taylor’s conduct
falls squarely within the confines of attorney immunity, the alleged
criminality or wrongfulness of the conduct does not perforce preclude its
availability as an affirmative defense. 58
This conclusion does not, however, terminate the analysis. We
must also consider Robbins’s argument that the common-law
attorney-immunity defense is unavailable—either categorically or
specifically—as a defense to her statutory claims. In Bethel, no
statutory causes of action were pressed against the attorney—it is a
spoliation case. But the source of the plaintiff’s claim, whether under
the common law or a statute, does not, alone, nullify the immunity
defense. That being the case, if attorney immunity is unavailable here,
it is only because the specific statutes at issue—the state and federal
wiretap statutes—preclude it. On that score, we do not agree with
Robbins that the defense is only available if a statute expressly adopts
57 Haynes & Boone, 631 S.W.3d at 78.
58 See Bethel, 595 S.W.3d at 657.
16
it, and we hold that the Texas wiretap statute does not abrogate the
defense. However, for reasons we explain below, we conclude that
Texas’s common-law attorney-immunity defense is unavailable under
the federal statute.
C. Texas Wiretap Statute
Common-law defenses may be abrogated by statute, 59 but under
Texas law, statutes purporting to abrogate common-law principles must
do so either expressly or by necessary implication. 60 Texas’s wiretap
statute does not expressly repudiate the common law or the
attorney-immunity defense. Robbins nonetheless argues that because
the Legislature enacted specific defenses to criminal prosecution and
civil liability for wiretapping, the statute necessarily fences out all
common-law defenses not explicitly articulated in the statute. 61 And
because the wiretap statute does not expressly adopt the common-law
attorney-immunity defense, Robbins contends Taylor may not rely on it.
Under Robbins’s line of reasoning, the Legislature would be
required to expressly enact or “opt into” each and every defense
applicable to a given cause of action, including defenses that exist under
common law. But that is not the law in this state. As a general
proposition, we follow an “opt-out” approach that incorporates
59 See Dugger v. Arredondo, 408 S.W.3d 825, 836 (Tex. 2013).
60Forest Oil Corp. v. El Rucio Land & Cattle Co., 518 S.W.3d 422, 428
(Tex. 2017).
61 E.g., TEX. CODE CRIM. PROC. art. 18A.504; TEX. PENAL CODE
§ 16.02(c).
17
common-law principles absent the Legislature’s clear repudiation. 62
Accordingly, the Legislature need not expressly adopt the
attorney-immunity defense for it to apply to claims under the wiretap
statute.
As we have often said, courts presume that the Legislature acted
with complete knowledge of existing law and with reference to it. 63
When the Legislature makes law, it does so against a backdrop in which
common-law defenses abound, and those defenses are generally
available unless the Legislature clearly indicates otherwise. 64 We will
62 Compare Forest Oil, 518 S.W.3d at 428 (“Abrogation of a common-law
right, as we have said, ‘is disfavored and requires a clear repugnance’ between
the common-law cause of action and the statutory remedy. A statute’s ‘express
terms or necessary implications’ must indicate clearly the Legislature’s intent
to abrogate common-law rights.” (quoting Cash Am. Int’l Inc. v. Bennett, 35
S.W.3d 12, 16 (Tex. 2000))), with Smith v. Baldwin, 611 S.W.2d 611, 616-17
(Tex. 1980) (“In light of the facts that the DTPA was not designed to be a
codification of the common law, the absence of a mental state element . . . and
[the element’s] inclusion in other subdivisions, the legislative history of the
1979 amendments, and in keeping with the mandate of liberal construction,
we hold [that a particular DTPA provision] does not require proof or a finding
of intentional misrepresentation before the sanctions of the DTPA are
imposed.”).
63Amazon.com, Inc. v. McMillan, 625 S.W.3d 101, 106-07 (Tex. 2021)
(“Because we presume that the Legislature uses statutory language ‘with
complete knowledge of the existing law and with reference to it,’ we have
concluded that concepts included in the Legislature’s ‘seller’ definition
acquired particular meaning from our common-law products liability cases.”
(quoting In re Allen, 366 S.W.3d 696, 706 (Tex. 2012)) (citations omitted)).
64 Cf., e.g., Dugger, 408 S.W.3d at 832 (“When the Legislature intends
an exception to Chapter 33’s broad scheme, it creates specific exceptions for
matters that are outside the scope of proportionate responsibility. . . . We find
no such indication that the Legislature intended a plaintiff’s unlawful conduct
to be treated differently from the other common law defenses under the former
contributory negligence scheme[.]”).
18
not presume the contrary, so we cannot conclude that the
attorney-immunity defense is inapplicable to a state wiretapping claim
unless the Legislature explicitly abrogated the defense or the defense
inherently conflicts with the statute. 65 Statutes “creat[ing] a liability
unknown to the common law,” like the Texas wiretap statute, are
“strictly construed in the sense that [the statute] will not be extended
beyond its plain meaning or applied to cases not clearly within its
purview.” 66 That means courts “must look carefully to be sure” the
Legislature intended to “modify common law rules.” 67
Robbins does not contend that the Texas wiretap statute
expressly repudiates common-law defenses, but she suggests that it does
so by necessary implication. Though she points out that the Code of
Criminal Procedure codifies a good-faith defense to the private right of
action for wiretapping 68 and the Penal Code provides specific affirmative
65 See Energy Serv. Co. of Bowie, Inc. v. Superior Snubbing Servs., Inc.,
236 S.W.3d 190, 194 (Tex. 2007) (“Of course, statutes can modify common law
rules, but before we construe one to do so, we must look carefully to be sure
that was what the Legislature intended.”); cf. Gunn Infiniti, Inc. v. O’Byrne,
996 S.W.2d 854, 856-57 (Tex. 1999) (“Nothing in the DTPA evidences a
legislative intent to withdraw mitigation of damages as an affirmative
defense . . . . Nor does the concept of mitigation inherently conflict with the
DTPA.”).
66 Smith v. Sewell, 858 S.W.2d 350, 354 (Tex. 1993).
Energy Serv. Co., 236 S.W.3d at 194; Satterfield v. Satterfield, 448
67
S.W.2d 456, 459 (Tex. 1969).
68TEX. CODE CRIM. PROC. art. 18A.504 (stating that “good faith reliance
on a court order or legislative authorization constitutes a complete defense to
an action brought under Article 18A.502”).
19
defenses to criminal prosecution, 69 the Legislature did not make those
defenses exclusive, and the statute cannot be fairly read as clearly
repudiating civil-liability defenses otherwise available under the
common law.
Robbins also cites the statute’s language creating “a civil cause of
action against any person who intercepts, discloses, or uses . . . the
communication[.]” 70 Although “any person” would inarguably include
attorneys, we are not convinced that the breadth of the statutory
language—which is not at all uncommon—clearly shows legislative
intent to abrogate common-law defenses generally or attorney immunity
specifically. 71 The attorney-immunity doctrine does not apply to all
conduct by attorneys, so attorneys are not precluded from being the
subject of a wiretap claim even though some of their conduct may give
rise to an immunity defense. In this regard, Robbins suggests a false
dichotomy. In reality, attorneys can be persons to whom the statute
applies and also immunized from civil liability for the kind of conduct
the immunity defense protects.
Nor does the statute’s evidentiary bar render Taylor’s conduct
foreign to the duties of an attorney or abrogate the attorney-immunity
defense. The Texas wiretap statute precludes “[t]he contents of an
intercepted communication and evidence derived from the
69 TEX. PENAL CODE § 16.02(c) (“It is an affirmative defense to
prosecution under Subsection (b) that . . . .”).
70 TEX. CODE CRIM. PROC. art. 18A.502 (emphasis added).
71See Energy Serv. Co., 236 S.W.3d at 194 (before construing a statute
to modify common-law rules, “we must look carefully to be sure that was what
the Legislature intended”).
20
communication” from being “received in evidence in any trial, hearing,
or other proceeding in or before any court,” 72 but this limitation on
admissibility of evidence is not repugnant to the attorney-immunity
defense because the sum total of an attorney’s legal duties does not begin
and end with admissibility of evidence. First, inadmissibility of evidence
does not foreclose all uses or disclosures of that evidence. 73 For example,
relevant information that is reasonably calculated to lead to admissible
evidence at trial is discoverable even though that information may later
be ruled inadmissible. 74 Similarly, an attorney like Taylor who receives
such evidence from a client may be under a duty to produce (i.e., use and
disclose) such evidence if responsive to an appropriate request from an
opposing party. More significantly, the evidentiary bar does not speak
to an attorney’s nonlitigation adversarial uses and disclosures at all.
Second, like other rules of evidence, this statute governs what a
trial court may receive into evidence—not what an attorney may seek to
have admitted. 75 In other words, it decrees what a court may do, not
what an attorney may do. Declaring intercepted communications and
72 TEX. CODE CRIM. PROC. art. 18A.357(a)(1). The federal wiretap
statute contains a similar prohibition. 18 U.S.C. § 2515.
73We emphasize, however, that the defense does not permit attorneys
who, for example, make bad-faith arguments for admissibility or intentional
misrepresentations to a court to escape sanction or disciplinary action if
appropriate.
74 See TEX. R. CIV. P. 192.3(a).
75 See TEX. CODE CRIM. PROC. art. 18A.357(a)(1) (“The contents of an
intercepted communication and evidence derived from the communication may
be received in evidence in any trial, hearing, or other proceeding in or before
any court . . . unless . . . the communication was intercepted in violation of this
chapter, Section 16.02, Penal Code, or federal law[.]” (emphases added)).
21
evidence derived therefrom inadmissible is not clearly incompatible
with the attorney-immunity defense because this evidentiary limitation
does not comprehensively address the duties or conduct of a lawyer in
the representation of a client and instead speaks only to a narrow type
of attorney conduct.
Indeed, the statute includes no provision that is inherently
adverse to immunizing attorneys from civil liability for their legal work
on behalf of their clients. In Troice v. Greenberg Traurig, L.L.P., the
Fifth Circuit came to a similar conclusion in determining that the Texas
Securities Act (TSA) did not abrogate the attorney-immunity defense. 76
The court explained that (1) the TSA “contains no explicit abrogation of
immunity”; 77 (2) attorney immunity has been applied to bar claims
under other statutes; 78 and (3) the TSA’s purposes would not be so
clearly impeded if attorneys “are immunized while they work within the
scope of their representation of clients” that courts could be “sure that
the Texas Legislature intended to abrogate attorney immunity in the
context of TSA claims.” 79 Each of these rationales supports application
of the attorney-immunity defense to civil claims under the state wiretap
statute. Because nothing in the Texas wiretap statute demonstrates
76 921 F.3d 501, 507-08 (5th Cir. 2019) (holding that the Texas
Securities Act did not abrogate the attorney-immunity defense because the Act
was not explicit in doing so and because giving effect to the defense would not
impede the statute’s purpose).
77 Id. at 508.
78 Id.
79 Id.
22
clear legislative intent to preclude attorney immunity, 80 the
common-law defense applies, and Taylor is immune from civil liability
under that statute.
That does not mean that all conduct criminalized by the wiretap
statute is immunized from civil liability or free of consequences. As we
explained in Bethel, while criminal conduct is not categorically excepted
from the attorney-immunity defense, neither is it categorically
immunized by that defense. 81 Criminal conduct may fall outside the
scope of attorney immunity, 82 and even when it does not, “nothing in our
attorney-immunity jurisprudence affects an attorney’s potential
criminal liability if the conduct constitutes a criminal offense.” 83 After
all, “attorney immunity is not boundless.” 84
In that vein, we note that Robbins has not pleaded facts
implicating Taylor in the alleged interception, either through action or
advice. Our holding today does not foreclose the possibility that such
80 See Forest Oil, 518 S.W.3d at 428; see also Energy Serv., 236 S.W.3d
at 194.
81 Bethel, 595 S.W.3d at 658 (citations omitted).
82 Id.
83 Id.
Id. at 657. As we have explained, attorney immunity applies only to
84
lawyerly work that lawyers undertake to discharge their professional duties in
connection with representation of a client. Our precedent identifies “several
nonexhaustive examples of [wrongful] conduct that may fall outside the reach
of the attorney-immunity defense,” for failure to meet one or more of these
requirements, including (1) “participat[ing] in a fraudulent business scheme
with a client”; (2) “knowingly helping a client with a fraudulent transfer” so
that client can “avoid paying a judgment”; (3) “theft of goods or services on a
client’s behalf”; and (4) “assaulting opposing counsel during trial.” Youngkin,
546 S.W.3d at 682-83.
23
conduct might fall outside the scope of attorney immunity. But as those
facts are not before us, we need not and do not express any opinion on
the matter. In this case, all of Taylor’s alleged conduct is covered by the
attorney-immunity defense because it was within the scope of her
representation of Broome and within her attorney function. She is
therefore immune from liability under the Texas wiretap statute.
This conclusion does not, however, compel the same outcome with
respect to the federal wiretap statute, which must be construed
according to its own terms and in light of how federal courts would
resolve the immunity question.
D. Federal Wiretap Statute
Taylor argues that Texas’s common-law attorney-immunity
defense applies to claims under the federal wiretap statute because
“Congress legislates against a background of common-law adjudicatory
principles,” 85 and courts should assume that Congress enacted the
federal wiretap statute with the expectation that common-law defenses
will operate unless a statutory purpose to the contrary is evident. 86 We
conclude that attorney immunity, as recognized and defined under
Texas law, is not a defense under the federal wiretap statute because,
quite simply, a state’s common-law defense does not apply to federal
85 Blevins v. Hudson & Keyse, Inc., 395 F. Supp. 2d 655, 659 (S.D. Ohio
2004).
E.g., Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 108
86
(1991) (“[W]here a common-law principle is well-established, . . . the courts
may take it as given that Congress has legislated with an expectation that the
principle will apply except ‘when a statutory purpose to the contrary is
evident.’” (citations omitted) (quoting Isbrandtsen Co. v. Johnson, 343 U.S.
779, 783 (1952))).
24
statutes. 87 Further considerations that support our conclusion include
(1) the federal statute’s plain language, (2) federal authority declining
to recognize extra-statutory defenses and immunities, and (3) Taylor’s
failure to identify a federal common-law defense that aligns with Texas’s
attorney-immunity defense that federal courts are likely to apply
notwithstanding the statute’s plain language.
When interpreting a federal statute, including whether it has
abrogated certain affirmative defenses, we endeavor to “anticipate how
the U.S. Supreme Court would decide the issue,” and “[t]his analysis
often draws on the precedents of other federal courts . . . to determine
the appropriate answer.” 88 In considering the existence or parameters
of a common-law defense that may apply to a federal statute, we also
“look to the common law, not of Texas or any particular jurisdiction, but
in general.” 89
Federal authority on the specific question of whether some
version of attorney immunity applies to the federal wiretap statute is
thin. Although federal courts have held that government attorneys are
absolutely immune from suit under 42 U.S.C. § 1983, 90 we have not
87 Cf. Union Pac. R.R. Co. v. Nami, 498 S.W.3d 890, 895 (Tex. 2016)
(holding that a defense derived from general common law, not Texas common
law, applied to the Federal Employers’ Liability Act).
88 In re Morgan Stanley & Co., 293 S.W.3d 182, 189 (Tex. 2009); see also
In re Facebook, Inc., 625 S.W.3d 80, 87 (Tex. 2021) (“When interpreting a
federal statute, this Court generally follows the decisions of the U.S. Supreme
Court.”).
89 Nami, 498 S.W.3d at 895.
90Imbler v. Pachtman, 424 U.S. 409, 423-24 (1976); see Barrett v. United
States, 798 F.2d 565, 571-73 (2d Cir. 1986) (holding that absolute immunity
25
found another statutory civil action to which a federal court has applied
any form of common-law attorney immunity.
Moreover, when federal courts use the term “attorney immunity,”
they are not necessarily talking about Texas’s particular brand of
attorney immunity. Courts have assigned the “attorney immunity”
appellation to defenses that substantively differ from one another. 91 In
its most common usage, the immunity more or less equates to what is
known in Texas as the judicial-proceedings privilege, which protects
“[c]ommunications in the due course of a judicial proceeding” from
“serv[ing] as the basis of a civil action for libel or slander, regardless of
the negligence or malice with which they are made.” 92 The privilege’s
parameters are both broader and narrower than the attorney-immunity
defense because the privilege covers “any statement made by the judge,
jurors, counsel, parties[,] or witnesses” and “attaches to all aspects of
the proceedings,” 93 but it is also limited to “liability for spoken or written
words” (as opposed to a broad category of “actions” or “conduct”) and is
also extends to state litigators in civil cases even if they are defending, rather
than prosecuting, a case).
91 E.g., Nix v. O’Malley, 160 F.3d 343, 352-53 (6th Cir. 1998) (using the
term “attorney immunity” to refer to what Texas courts call the
judicial-proceedings privilege—a substantively different defense).
92 Landry’s, 631 S.W.3d at 46 (quoting James v. Brown, 637 S.W.2d 914,
916 (Tex. 1982)); see also RESTATEMENT (SECOND) OF TORTS § 586 (AM. L. INST.
1977) (“An attorney at law is absolutely privileged to publish defamatory
matter concerning another in communications preliminary to a proposed
judicial proceeding, or in the institution of, or during the course and as a part
of, a judicial proceeding in which he participates as counsel, if it has some
relation to the proceeding.”).
93 James, 637 S.W.2d at 916-17.
26
inapplicable outside the judicial proceeding. 94 Nearly all states
recognize this variety of “absolute immunity for lawyers . . . with ‘very
little variation’ from state to state.” 95 It is just known by other names
in other states. 96 In the federal cases Robbins cites as rejecting attorney
immunity under the federal wiretap statute, the litigants had asked the
court to adopt other states’ versions of the judicial-proceedings privilege,
referred to in those cases by variations on the phrase “attorney
immunity.” 97 But because, under Texas law, the judicial-proceedings
94 Landry’s, 631 S.W.3d at 51.
95 T. Leigh Anenson, Absolute Immunity from Civil Liability: Lessons
for Litigation Lawyers, 31 PEPP. L. REV. 915, 917-18 (2004) (quoting Paul T.
Hayden, Reconsidering the Litigator’s Absolute Privilege to Defame, 54 OHIO
ST. L.J. 985, 991-92 n.37 (1993)); see Simms v. Seaman, 69 A.3d 880, 886-87
(Conn. 2013) (“The principle that defamatory statements by attorneys during
judicial proceedings are absolutely privileged when they are pertinent and
material to the controversy is now well established in American
jurisprudence.”); RESTATEMENT (SECOND) OF TORTS § 586 (AM. L. INST. 1977).
96 See, e.g., Simms, 69 A.3d at 881 & n.1 (“litigation privilege”);
Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So. 2d 380, 380
& 383 (Fla. 2007) (“litigation privilege”); Kirschstein v. Haynes, 788 P.2d 941,
948-54 (Okla. 1990), superseded on other grounds by rule, OKLA. SUP. CT. R.
1.26 (“absolute privilege”); Surace v. Wuliger, 495 N.E.2d 939, 942-43 (Ohio
1986) (“absolute privilege in judicial proceedings”).
97E.g., Nix, 160 F.3d at 352-53; Babb, 616 F. Supp. 2d at 1207-08; see
also Lewton v. Divingnzzo, 772 F. Supp. 2d 1046, 1057 (D. Neb. 2011) (citing
Babb, 616 F. Supp. 2d at 1207, and Nix, 160 F.3d at 352-53) (“[T]he court was
unable to find any binding authority holding that an attorney who uses a
communication intercepted in violation of the federal Wiretap Act is entitled
to blanket immunity from Title III liability. The court did find persuasive
authority to the contrary.”).
27
privilege is distinct from attorney immunity, those cases are not strictly
applicable here. 98
Even so, these cases, along with others, provide a strong basis for
concluding that federal courts would be unlikely to apply Texas’s
attorney-immunity defense to the federal wiretap statute. Although we
have found nothing on point, federal courts are nearly uniform in
declining to adopt extra-statutory exceptions and refusing to apply state
common-law defenses, such as the judicial-proceedings privilege and
interspousal immunity. 99 Admittedly, there are few cases on the topic,
but the reasons the courts have offered are straightforward.
98 “The ‘judicial-proceedings privilege’ and ‘attorney immunity’ are
‘independent [defenses] serving independent purposes.’” Landry’s, 631 S.W.3d
at 46 (alteration in original) (quoting Cantey Hanger, 467 S.W.3d at 485 n.12);
see id. at 46-47 (detailing the differences between the two defenses).
99 Glazner v. Glazner, 347 F.3d 1212, 1214-16 (11th Cir. 2003); Kempf
v. Kempf, 868 F.2d 970, 972-73 (8th Cir. 1989); Pritchard v. Pritchard, 732 F.2d
372, 373-74 (4th Cir. 1984); Lewton, 772 F. Supp. 2d at 1057; Babb, 616 F.
Supp. 2d at 1207-08; Gill v. Willer, 482 F. Supp. 776, 778 (W.D.N.Y. 1980);
Remington v. Remington, 393 F. Supp. 898, 901-02 (E.D. Pa. 1975); accord Ex
parte O’Daniel, 515 So. 2d 1250, 1253 (Ala. 1987); see also United States v.
Jones, 542 F.2d 661, 667-73 (6th Cir. 1976); Pyankovska v. Abid, No. 2:16–CV–
2942 JCM (PAL), 2017 WL 5505037, at *4 (D. Nev. Nov. 16, 2017) (applying
Babb, 616 F. Supp. 2d at 1207); compare Nix, 160 F.3d at 350-53 (stating no
implied statutory immunity “has a breadth equal to that of the common-law
defamation privilege” and declining to adopt such immunity because (1) “th[e]
proposed immunity contravenes the [statute’s] plain language,” which requires
exceptions to be explicit and (2) the disclosures that occurred “exceed[ed] the
boundaries of any attorney immunity because [they] were tangential to [the
client’s] defense,” while at the same time (a) acknowledging that the circuit
court had previously recognized “very narrow[]” “unwritten exceptions” and
(b) adopting a narrow “defense exception” that offers defendants a limited
privilege to use and disclose communications in defense of a wiretapping
lawsuit).
28
First, the statute applies to “any person” “[e]xcept as otherwise
specifically provided” in the statute. 100 This exclusivity language makes
the terms of the federal statute materially different from the Texas
statute. Based on this “plain and explicit” and “clear and unambiguous”
language, federal courts have rejected exceptions and immunities that
are not specifically enumerated in the statute. 101 Further, as federal
100 18 U.S.C. § 2511(1) (emphasis added).
101 Kratz v. Kratz, 477 F. Supp. 463, 467 (E.D. Pa. 1979) (“The clear and
unambiguous meaning of [section] 2511(1)(a) is to prohibit the interception of
All wire communications by Any person except as Specifically provided by
Congress.” (emphasis added)); see Heggy v. Heggy, 944 F.2d 1537, 1540 (10th
Cir. 1991) (concluding the federal wiretap statute does not exempt interspousal
interception, use, or disclosure based on the statute’s express language
requiring an exception to be “specifically” articulated in the statute); Nix, 160
F.3d at 350-53 (declining to adopt the defamation privilege, in part, because
“this proposed immunity contravenes [the statute’s] plain language”); Jones,
542 F.2d at 666-67 (refusing to apply an interspousal-immunity privilege as a
defense to prosecution based on the “straightforward and comprehensive”
language of the statute, which “quite clearly expresses a blanket prohibition
on all electronic surveillance except under circumstances specifically
enumerated in the statute”); Heyman v. Heyman, 548 F. Supp. 1041, 1045-47
(N.D. Ill. 1982) (refusing to recognize an interspousal-immunity exception and
declaring the statute’s language “clear” and “unambiguous” in prohibiting any
exceptions “except as specifically provided in the statute”).
At least one federal court has also refused to apply a different state
common-law defense—interspousal tort immunity—to the federal wiretap
statute because Congress did not include the defense in far-reaching
amendments. E.g., Heggy, 944 F.2d at 1541. “[H]ad it been the intent of
Congress to keep interspousal wiretapping beyond the reach of Title III,
Congress could have expressly excluded [it] when it overhauled Title III in the
Electronic Communications Privacy Act of 1986[.]” Id. But even though those
“amendments touched nearly every section of Title III, Congress did not codify
the judicially created exception for interspousal wiretapping[.]” Id. The choice
not to codify the interspousal-immunity defense in an otherwise wide-ranging
statutory overhaul has been interpreted as reflective of a congressional intent
to deny the defense. See id.29
courts have noted, the United States Supreme Court has generally
stated that “the purpose of the Act is to effectively prohibit ‘all
interceptions of oral and wire communications, except those specifically
provided for[.]’” 102
Second, courts have explained that state law cannot modify
federal law. As the Tenth Circuit succinctly put it: “The short answer to
the [state common-law] immunity defense is that [the federal wiretap
statute] creates a federal cause of action that cannot be barred by any
state law or policy.” 103 This view generally accords with our analysis in
Union Pacific Railroad Co. v. Nami, which looked to general
common-law principles, rather than the common law of Texas or any
particular jurisdiction, in determining that the common-law ferae
naturae doctrine applies to claims under the Federal Employers’
Liability Act. 104
While there is a dearth of federal cases on the precise issue
presented, we think it unlikely that a federal court would apply Texas’s
common-law attorney-immunity defense to the federal wiretap statute
102See Heyman, 548 F. Supp. at 1045 (quoting United States v.
Giordano, 416 U.S. 505, 514 (1974)).
103 Heggy, 944 F.2d at 1541 n.8 (discussing the interspousal-immunity
defense); see Jones, 542 F.2d at 672 (holding that the federal wiretap statute
contains no express or implied exception for interspousal wiretaps and noting
“[t]here is also substantial doubt whether a doctrine of state tort law should
have any influence in defining a cause of action expressly created by federal
statute, particularly when Congress could have included a similar provision in
the statute and failed to do so”); Kratz, 477 F. Supp. at 475 (“[T]he cause of
action in this case is provided by federal law and cannot be subverted by any
state law or policy.”).
104 498 S.W.3d at 895-99.
30
if presented with the question today. Based on the statute’s plain
language, which requires exceptions to be explicit, we also find it
unlikely that a federal court would apply a federal common-law version
of our attorney-immunity defense, but to the extent that is a reasonable
possibility, Taylor has not substantiated the existence or contours of any
such defense. Accordingly, we hold that Taylor may not invoke Texas’s
attorney-immunity defense as a bar to liability under the federal
wiretap statute.
III. Conclusion
Taylor is entitled to summary judgment on Robbins’s state
wiretapping claims because the kind of conduct alleged in support of
those claims falls within the scope of the attorney-immunity defense.
But Taylor is not entitled to summary judgment on Robbins’s claims
under the federal wiretap statute because we are not convinced that
federal courts would apply Texas’s common-law attorney-immunity
defense to that statute. We thus affirm the court of appeals’ judgment
in part, reverse and render judgment in part, and remand the case to
the trial court for further proceedings on the federal wiretap claims.
John P. Devine
Justice
OPINION DELIVERED: May 6, 2022
31