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Litigation News

Fall 2022, Vol. 48, No. 1

Holes in the Attorney Immunity Defense

Sara Elizabeth Costello


  • The Texas Supreme Court ruled that the attorney immunity defense does not protect attorneys from federal wiretap claims, only offering protection against state law claims.
  • Attorneys should seek guidance and not solely rely on attorney immunity defense when faced with questionable conduct.
  • The ruling highlights the need for attorneys to understand the limitations of attorney immunity in different legal contexts and the distinctions between state and federal statutes.
Holes in the Attorney Immunity Defense
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The affirmative defense of attorney immunity does not defeat federal wiretap claims, a state supreme court ruled. Taylor v. Tolbert applied the state common law defense to protect an attorney from state law claims but declined to extend it to federal claims. ABA Litigation Section leaders urge members to seek guidance if clients suggest they engage in questionable conduct. Attorneys should not simply rely on the attorney immunity defense, leaders caution.

Attorney Sued for Violating Wiretap Statutes

In Taylor, an attorney represented a father in a hotly disputed family law case. While using a family member’s iPad, the child involved in the case discovered text messages and emails between her mother and about 30 other people. One of the texts included a nude photograph that the mother had sent to her boyfriend. The father shared these communications with his attorney for use in child custody proceedings.

The child’s mother sued the father’s attorney, alleging that she violated federal, 18 U.S.C. § 2511(1), and Texas, Texas Penal Code § 16.02, wiretap statutes. The lawsuit alleged that the attorney improperly “used” and “disclosed” illegally intercepted electronic communications.

According to the suit, the attorney violated the law by, among other things, threatening to use the nude photograph of the mother as a poster-size demonstrative exhibit in trial, using the text messages and emails to pressure the mother to resolve the custody case, and disclosing the illegally intercepted communications to the court.

Defense Protects Attorney from State Law Claims, But Not Federal Claims

The Texas Supreme Court held that the attorney was immune from liability on the state wiretap claims. But the supreme court affirmed the appellate court’s ruling on the federal wiretap claims. “[Q]uite simply, a state’s common-law defense does not apply to federal statutes,” the court summarized.

In reaching its conclusion, the supreme court first analyzed whether the attorney’s conduct was covered by the attorney immunity defense. It held that the standard was “easily satisfied.” The attorney’s conduct was (1) within the scope of representing the father in the custody proceedings and (2) “not foreign to the duties of a lawyer.” But that finding did not complete the court’s analysis.

Considering the federal claims, the supreme court held that the attorney “may not invoke Texas’s attorney-immunity defense as a bar to liability under the federal wiretap statute.” In the court’s view, federal courts are unlikely to apply Texas’s attorney immunity defense to the federal wiretap statute. The supreme court based its conclusion on the plain language of the statute, precedent refusing to recognize state common law defenses, and the attorney’s failure to identify a federal common law defense like Texas’s attorney immunity defense.

However, the supreme court reached a different conclusion regarding the state claims. In doing so, the supreme court examined whether the state wiretap statute nullified the attorney immunity defense. Texas law requires that statutes abrogating common law defenses “do so either expressly or by necessary implication.” “Because nothing in the Texas wiretap statute demonstrates clear legislative intent to preclude attorney immunity,” the supreme court held that the attorney was entitled to summary judgment on the state claims.

The supreme court remanded the case to the trial court for additional proceedings on the federal wiretap claims.

Court Was Right to Treat Federal Claims Differently

Litigation Section leaders agree that the Texas Supreme Court correctly applied the attorney immunity defense only to the state wiretap claims. “The court had to walk a fine line to give attorneys the freedom and latitude to zealously represent their clients, but not allow attorneys to skirt the laws,” notes Michael S. LeBoff, Newport Beach, CA, cochair of the Section’s Professional Liability Litigation Committee. In the end, “the court could not find a federal common law defense equivalent” to the Texas attorney immunity defense, LeBoff elaborates. “From that perspective, the court had little choice to find that the Texas attorney immunity doctrine does not apply” to the federal wiretap statute, he observes.

The court also “made a compelling textual argument that the federal wiretap statute does not allow any exceptions,”contends Alanna G. Clair, Washington, DC, cochair of the Attorneys’ Liability Subcommittee of the Section’s Professional Liability Litigation Committee.

“It makes sense that a state court cannot create a defense to a federal criminal statute,” John M. Barkett, Miami, FL, cochair of the Section’s Ethics & Professionalism Committee, agrees. “Rather, it has to interpret federal law to determine if the defense is available,” he explains.

Texas’s Broad Attorney Immunity Defense Is an Outlier

In Texas, if the attorney immunity defense applies, it does not matter if the attorney’s conduct was meritorious or not, the Taylor court noted. However, Section leaders caution that attorneys should not rely on the defense applying if they are accused of violating a criminal statute.

“Almost every state recognizes that a lawyer can be protected when they are acting as lawyer,” Clair observes. However, “the scope of the Texas common law defense is really a lot broader than other states,” she says.

Further, “as this decision points out, if the issue is a federal criminal statute, the rules might be different,” Barkett notes. “If the federal statute does not provide the defense,” and Barkett “would not expect it to—then the issue becomes one of federal common law.” “That is a thicket at the moment,” he says. So, “I would not assume that attorney immunity would protect a lawyer from liability if the lawyer’s conduct represents a violation of a federal criminal statute,” Barkett counsels.

Case Highlights Need for Attorneys to Seek Outside Guidance

The Texas Supreme Court’s ruling may “put attorneys in a position where it is difficult to know what they can and cannot do,” LeBoff believes. “That is problematic and renders uncertainty about what conduct is acceptable,” he says.

In Clair’s view, the attorney in Taylor “may not have understood that her acts were criminal or quasi-criminal.” The attorney may have thought she was just “gathering or collecting evidence,” Clair notes.

But LeBoff thinks that “if the attorney had exercised better judgment, it may have been a different outcome.” In this case, “the attorney’s conduct was somewhat extreme” and “went beyond just receiving information from her client,” LeBoff contends.

Ultimately, attorneys should seek advice if they have any questions on how to handle evidence from clients. “If an attorney is concerned about what a client is asking the attorney to do,” Clair recommends that he or she “discuss the issue within the law firm or with outside counsel.”