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Attorney Immunity Under the Texas Anti-SLAPP, TCPA Law

Texas Anti-SLAPP, TCPA law

Written by Robert Ray

I am a Texas attorney. I am Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization. I handle cases throughout Texas. My principle office is in Lantana, Texas in the DFW area. I am a past chair of the Texas State Bar, Computer & Technology Section. I was appointed by the Chief Justice to serve one year as an ex-officio member on the Judicial Committee on Information Technology. I have published articles in the Texas Bar Journal and an ABA journal.

March 23, 2020

Background

In Moore vs. Anson Financial, Inc. 02-19-00201-CV, (Tex. App. – Fort Worth 2020, no pet.) (mem. op.), Anson Financial, Inc. was involved in a lawsuit against a former employee/attorney, Ghrist. Moore was Ghrist’s attorney. Anson filed suit against Moore alleging a civil conspiracy to help Ghrist breach his fiduciary duty as Anson’s former attorney. Anson alleged that through the conspiracy, Moore was helping Ghrist harm Anson in multiple ways.

Moore filed a motion to dismiss under the Texas Anti-SLAPP, TCPA, law. Anson then filed a non-suit and the trial court denied the motion to dismiss. Moore appealed.

In its petition, Anson alleges that Moore engaged in multiple forms of misconduct while representing Ghrist and various third parties, and this misconduct demonstrates a civil conspiracy to harm Anson and to breach Ghrist’s fiduciary duty to Anson as the firm’s former attorney. But looking beyond the labels of misconduct and conspiracy, each of the complained-of actions is the kind of thing that an attorney would do in the course of representing a client.

Facts

The appeals court noted that Moore’s motion to dismiss survived the non-suit. It then assumed, without deciding, that Anson met its burden to show by clear and specific evidence, a prima facie case for its conspiracy claim. It then turned to the affirmative defense of attorney immunity.

Conclusion and Disposition

 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…A court would then decide the legal question of whether the conduct was within the scope of representation…The plaintiff’s pleadings are usually the “best and all-sufficient evidence of the nature of the action. (citations omitted).

As a general rule, attorneys are immune from civil liability to nonclients for actions taken in connection with representing a client in litigation…Put differently, an attorney may be liable to nonclients only for conduct outside the scope of his representation of his client or for conduct foreign to the duties of a lawyer…”An attorney is given latitude to pursue legal rights that he deems necessary and proper precisely to avoid the inevitable conflict that would arise if he were forced constantly to balance his own potential exposure against his client’s best interest.

The immunity inquiry focuses on the kind of conduct at issue rather than the alleged wrongfulness of the conduct. Under this analysis, a lawyer is no more susceptible to liability for a given action merely because it is labeled as fraudulent or criminal…Even conduct that is wrongful in the context of the underlying suit is not actionable if it is part of the discharge of the lawyer’s duties in representing a client…Rather, “other mechanisms are in place to discourage and remedy such conduct, such as sanctions, contempt, and attorney disciplinary proceedings.”

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…A court would then decide the legal question of whether the conduct was within the scope of representation…The plaintiff’s pleadings are usually the “best and all-sufficient evidence of the nature of the action.

(citations omitted).

Ruling

A lawyer and his law firm have appealed the denial of their motion to dismiss under the Texas Citizens Participation Act (“TCPA”). We hold that they have established both requisites for dismissal: that this suit is based on their exercise of the protected right to petition and that they are entitled to the defense of attorney immunity. We therefore reverse and remand for dismissal and a determination of attorneys’ fees, costs, and any other appropriate relief.

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