Taylor v. Tolbert

Taylor v. Tolbert

Opinion

] 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 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 [*2]  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.

I. Background

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