The Litigation Privilege

Ryan Squires1

Introduction

A litigator, like any other professional, sometimes finds him/herself as a defendant in a lawsuit. But sometimes, the person bringing the suit is not an unhappy former client alleging malpractice, but an unhappy former opponent alleging wrongful conduct in prior litigation. Generally, the former opponent believes that the lawyer filed a frivolous case, frivolous motions, or otherwise engaged in wrongful litigation conduct.

In this circumstance, there is a body of case law to aid in the lawyer’s defense. It is sometimes referred to as attorney immunity or the litigation privilege. If applicable, it can protect attorneys who suddenly find themselves defending a case brought by a former opponent or opposing counsel.

What is the litigation privilege?

 

The litigation privilege insulates an attorney from liability to (i) his opposing counsel, and (ii) his opposing party.2 The privilege protects the type of conduct generally engaged in by attorneys as part of discharging duties to their clients.3

 

What is the policy behind the litigation privilege?

 

The policy behind the litigation privilege goes hand-in-hand with the adversary system and the importance of affording each party effective legal representation. “The public has an interest in . . . ‘aggressive representation by the legal profession.’”4 An attorney should zealously represent his client “within the bounds of the law.”5 In doing so, an attorney should be able to “interpose any defense or supposed defense and make use of any right on behalf of such client . . . without making himself subject to liability in damages.”6

A contrary policy would favor tentative rather than zealous representation and could harm clients.7 A party may be denied a full development of his case if his attorney is worried about potential liability to the opposing party/counsel.8 This would “dilute the vigor with which Texas attorneys represent their clients, which would not be in the best interests of justice.”9

What is the history of the litigation privilege?

The Texas litigation privilege has roots dating back almost a century.

In 1910 the Dallas Court of Civil Appeals decided Kruegel v. Murphy.10 In Kruegel, a litigant sued various opposing lawyers and judges alleging a conspiracy to defeat his appeal of a prior ruling.11 In a one-sentence blurb without citing any authority, the court held that the litigant could not recover against the lawyers because “attorneys are authorized to practice their profession, to advise their clients and interpose any defense or supposed defense, without making themselves liable for damages.”12

In 1966, the Austin Court of Appeals relied on this language when it decided Morris v. Bailey.13 In Morris, a litigant sued his opposing counsel for filing numerous motions for continuance in prior litigation.14 The litigant complained that the filings were an effort to trap him in endless litigation.15 In affirming summary judgment against the litigant, the court held that the attorney filed the motions in his capacity as an attorney representing his client and was thus protected.16

In 1994, the Houston Court of Appeals relied on Morris when it decided Bradt v. West.17 The Bradt opinion better articulated the policy underlying the privilege and its scope.18 In this case, lawyers asked the court to hold their opposing counsel in contempt for violating an order in limine.19 In response, the opposing counsel sued the lawyers for a variety of causes of action stemming from such attempt.20

The trial court dismissed the case on summary judgment and the Houston Court of Appeals affirmed.21 The Court of Appeals held that the public has an interest in aggressive representation by lawyers and that lawyers have a duty to zealously represent their clients “within the bounds of the law.”22 The court therefore concluded that, “an attorney does not have a right of recovery, under any cause of action, against another attorney arising from conduct the second attorney engaged in as part of the discharge of his duties in representing a party in a lawsuit in which the first attorney also represented a party.”23

In 1997, in Renfroe v. Jones & Assoc., the Fort Worth Court of Appeals expressly extended the litigation privilege announced in Bradt to suits brought by opposing parties rather than just suits brought by an opposing counsel.24

 

When does the litigation privilege apply?

 

The litigation privilege protects the type of conduct that attorneys generally engage in as part of discharging their duties to their clients.25

The Bradt court described the privilege’s policy as protecting conduct that is “within the bounds of the law.”26 Some plaintiffs have therefore argued that filing a frivolous pleading that gives rise to a cause of action is not conduct “within the bounds of the law” because it is improper. But other courts have clarified that the proper focus is not on the merits of the attorney’s conduct, but rather the type of conduct involved.27 After all, if the privilege stopped at the bounds of the law, there would be no reason for a privilege.

If the conduct complained of is the type of conduct that attorneys engage in as part of discharging their duties to their client, the privilege applies regardless of the nature of the conduct.28 For example, the litigation privilege protects attorneys who file frivolous motions because filing motions is the type of conduct attorneys engage in as part of discharging duties to their clients.29 There are certainly consequences for filing frivolous pleadings, but civil liability to the opponent is not one of those consequences.30

Courts have applied the litigation privilege, or at least cited litigation-privilege cases as authority, in the following circumstances:

  • summary judgment was affirmed in favor of an attorney and against the attorney’s opposing party where the allegation was that the attorney failed to produce a document requested during discovery;31
  • summary judgment was granted in favor of an attorney and against the attorney’s opposing party where the allegation was that the attorney manipulated facts to obtain favorable venue, which resulted in a substantial settlement;32
  • summary judgment was affirmed in favor of an attorney and against the attorney’s opposing party where the allegation was that the attorney prepared and filed an application for writ of garnishment that was later dissolved;33
  • summary judgment was affirmed in favor of an attorney and against the attorney’s opposing party (the husband in a divorce action) where the allegation was that the attorney maxed out the wife’s community credit cards in order to pay the attorney’s retainer;34 and
  • summary judgment was affirmed in favor of several attorneys and against the attorneys’ opposing party where the allegation was that the attorneys filed an onslaught of pleadings (some in violation of a bankruptcy stay) in an attempt to defraud the opposing party of his property and “destroy him financially, physically, mentally, and emotionally.”35

When does the litigation privilege not apply?

There are instances when the privilege clearly does not apply. For example, in Miller v. Stonehenge/Fasa – Texas, JDC, L.P., the litigation privilege did not protect an attorney representing a debt collector from liability for allegedly accosting the debtor’s wife while executing a writ of execution.36 The court ruled that execution of the writ did not require the training or skill of the attorney and thus the attorney’s conduct was not protected.37 In that case, the threatening and invasive conduct was clearly not part of discharging legal duties on behalf of the client.

There are other instances where the privilege’s applicability is less clear. In Mendoza v. Fleming, a judgment debtor, who happened to be a judge running for office, brought a wrongful garnishment action against his opposing counsel for garnishing campaign funds that were exempt from personal creditors.38

On its face, the conduct complained of – filing a garnishment procedure – would appear to be protected, as it was in Renfroe v. Jones & Assoc.39 But the Corpus Christi Court of Appeals reversed the summary judgment rendered in favor of the attorney and distinguished Renfroe.40The court held that unlike in Renfroe, the plaintiffs alleged a malicious motive, i.e. the garnishment action was not filed to collect a debt, but was intended to interfere with the debtor’s campaign.41 In addition, there was an issue with whether the attorneys had complied with the applicable notice provisions relating to writs of garnishment.42

Based on these facts, the court held that a fact question remained as to whether the attorneys’ conduct was “within the bounds of the law,” a burden the court placed on the attorney to conclusively prove in order to obtain summary judgment.43

The Mendozacourt did not explain how filing a pleading with an alleged malicious motive is any different than filing a frivolous pleading. Frivolous pleadings are expressly protected by the litigation privilege.44 Merely alleging that a pleading was filed for harassment or some other malicious motive should not be enough to vitiate the privilege, nor should failing to comply with applicable notice provisions. If these allegations were all that were required to defeat the privilege, the privilege would be meaningless and the policy behind the privilege frustrated.

An attorney’s fraud or conspiracy to defraud may defeat the privilege.

Courts can be reluctant to apply the privilege when the conduct complained of is an opposing attorney’s actual fraud or conspiracy to defraud a third party. But the facts of each case have to be carefully scrutinized because merely labeling conduct as “fraudulent” should not automatically defeat the privilege.

In Poole v. The H. & T.C. Ry. Co., the Texas Supreme Court held that an attorney, accused of conspiring with his client to defraud a shoe supplier, could not shield himself from liability by claiming that he was merely acting as an attorney because fraudulent acts are “entirely foreign to the duties of an attorney . . . .”45

The Houston Court of Appeals relied on Poole when it decided Likover v. Sunflower Terrace II, Ltd.46 In Likover, the Houston court upheld a judgment against an attorney accused of conspiring with his client to defraud a third party in the sale of an apartment complex.47 The attorney argued that he was not liable because he was merely acting as his client’s attorney and owed no duty to the non-client third party.48 The court disagreed. The court acknowledged that an attorney is authorized to practice his profession without making himself liable for damages, but held that an attorney has no right to engage in fraudulent conduct or enter into a conspiracy to defraud a third person.49

Neither Poolenor Likover dealt with an attorney in active litigation, but courts and plaintiffs cite both as authority for the so-called “fraud exception” to the litigation privilege.50 Is it really an exception? And can merely labeling conduct as fraudulent automatically defeat the privilege? There is case law addressing these issues.

For example, in Querner v. Rindfuss, the San Antonio Court of Appeals reversed summary judgment in favor of an attorney accused by a beneficiary of defrauding the estate he represented in highly contested probate litigation.51 The lawyer claimed an absolute privilege because the acts were taken during litigation.52 But the court, citing Pooleand Likover,held that there is no global privilege for all actions taken during litigation and if an attorney engages in fraudulent conduct or acts in furtherance of some other conspiracy, he can be held liable.53

But the facts in Querner are distinguishable from most cases where the litigation privilege arises. First, the attorney in Querner apparently held himself out as owing some duties to the beneficiary,54 which is unlike the typical litigation situation where no duty is owed to an opposing party. Second, the allegations in Querner appear to have centered on the lawyer’s possible involvement in misappropriating estate funds (stealing), which clearly is not protected conduct.55

In other cases, the line is less clear. Take, for example, the attorney who conspires with his client to refuse disclosure of harmful documents, which then results in an lopsided settlement in the client’s favor. Is the lawyer’s failure to disclose, in the face of an arguable duty to disclose via discovery and ethical rules, enough to label the conduct as fraudulent and vitiate the privilege? Several courts say “no.”56

In Lewis v. Am. Exploration Co., the issue was whether a law firm could be held liable to an opposing party for allegedly providing false discovery responses about the existence of certain documents and assisting its client in providing false deposition testimony regarding same.57 The court acknowledged the Querner decision, but distinguished it by differentiating between (i) an estate lawyer who held himself out as owing some duties to the beneficiary and who was alleged to have participated in converting estate assets, and (ii) a law firm that neither owed, nor held itself out as owing duties to its opponent and whose lawyers were alleged to have provided false discovery responses.58 The court held that the latter conduct was protected because answering discovery responses is the type of conduct that lawyers engage in as part of discharging their duties to their clients.59 As such, the conduct was protected.

The bottom line is that merely labeling conduct as fraudulent will not defeat the privilege if the underlying conduct is protected, i.e. the type of conduct that attorneys engage in as part of discharging duties to their clients.60

Is the litigation privilege an affirmative defense?

 

Texas courts are currently in conflict on whether the litigation privilege is an affirmative defense that must be proved by the defendant attorney or simply a legal principal that no duty is owed to an opposing party.

 

In Bradt v. West, one of the most-cited cases for the litigation privilege, the Houston Court of Appeals held that “an attorney does not have a right of recovery, under any cause of action against another attorney arising from conduct the second attorney engaged in as part of the discharge of his duties in representing a party in a lawsuit in which the first attorney also represented a party.”61 This language suggests that the privilege is not an affirmative defense, but rather a reiteration that an attorney owes no duty to his opposing party/counsel.

But in Mendoza v. Fleming, the Corpus Christi Court of Appeals referred to the Bradt decision as “attorney immunity,” an affirmative defense which must be proved by the attorney.62

In Mitchell v. Chapman, the Dallas Court of Appeals referred to the Bradt opinion when it held that an attorney simply owes no legal duty to his opposing counsel/party.63

And in White v. Bayless, the San Antonio Court of Appeals also referred to the Bradt opinion when it held that an attorney owes no legal duty to his opposing party.64

In IBP, Inc. v. Klumpe, the Amarillo Court of Appeals did not clear up the confusion when it held, “[p]leading and asserting that an act is privileged is not the same as asserting that no cause of action exists in favor of the plaintiff on the basis that the defendant owed no duty to the plaintiff.”65 The Klumpe court tried to distinguish Mitchell from other litigation-privilege cases by indicating that Mitchell was not decided on the basis of privilege, but on whether a duty was owed.66 But the court failed to acknowledge that the Mitchell opinion cited the same litigation-privilege cases as authority for its decision.

Whether the privilege is an affirmative defense or whether no cause of action exists due to the lack of a duty has procedural implications. For example, if no cause of action exits, a special exception may be warranted, followed by dismissal if the plaintiff fails to adequately plead facts giving rise to a duty. But for an affirmative defense, a summary-judgment motion is likely required with proof that conclusively establishes the defense.

Is pending litigation a prerequisite to applying the litigation privilege?

At least one court has held that pending litigation is not a prerequisite to the privilege’s applicability.67

In Hanna v. Niemann, frustrated condominium purchasers hired an attorney after the seller allegedly recorded a different declaration than what was provided to the purchasers during negotiations.68 The attorney filed a document in the deed records that arguably clouded future condominium titles.69 A subsequent condominium purchaser discovered his clouded title and sued the attorney.70

Despite the absence of pending litigation, the Austin Court of Appeals affirmed summary judgment in favor of the attorney based on the litigation privilege.71 The court held that “an attorney’s qualified privilege relates to her representation of a client, regardless of whether the conduct is in the context of pending litigation.”72 In this case, the attorney filed the complained-of document as part of her representation of her clients and was thus protected.73

Conclusion

 

Texas lawyers should not hesitate in providing their best representation to their clients. This goal can be compromised if a lawyer begins to worry about whether his/her actions might create some exposure to an opponent for civil liability. The litigation privilege exists because sometimes the public’s interest in aggressive representation by our legal community outweighs a disgruntled opponent’s interest in suing his opposing counsel.74

If an attorney finds him/herself served with a lawsuit, an important first step is to determine whether the litigation privilege might apply. While there are some open questions regarding the privilege, it provides attorneys with a strong defense to claims brought by non-clients.


Cite as: Ryan Squires, The Litigation Privilege, TEXSUPP (2008), available at

http://www.texsupp.com/2008/04/06/the-litigation-privilege/.


  1. Ryan Squires is an associate at Scott, Douglass & McConnico, LLP in Austin, Texas, specializing in the areas of general and commercial litigation, products liability, and professional malpractice defense. J.D. 2004, cum laude, Baylor University School of Law.[back]
  2. Bradt v. West, 892 S.W.2d 56, 71–72 (Tex. App.—Houston [1st Dist.] 1994, writ denied) (holding that the privilege protects attorneys from liability to opposing counsel); see also Renfroe v. Jones & Assoc., 947 S.W.2d 285, 288 (Tex. App.—Fort Worth 1997, writ denied) (holding that the privilege protects attorneys from liability to opposing parties).[back]
  3. See Bradt, 892 S.W.2d at 72.[back]
  4. Id. at 71 (quoting Maynard v. Cabellero, 752 S.W.2d 719, 721 (Tex. App.—El Paso 1988, writ denied)).[back]
  5. Id.[back]
  6. Id. (quoting Morris v. Bailey,398 S.W.2d 946, 947 (Tex. Civ. App.—Austin 1966, writ ref’d n.r.e.)).[back]
  7. Id. at 72.[back]
  8. Id. at 71 (quoting Morris, 398 S.W.2d at 947).[back]
  9. Id. at 72.[back]
  10. 126 S.W. 343 (Tex. Civ. App.—Dallas 1910, writ ref’d).[back]
  11. Id. at 344.[back]
  12. Id. at 345.[back]
  13. 398 S.W.2d 946, 948 (Tex. Civ. App.—Austin 1966, writ ref’d n.r.e.).[back]
  14. Id. at 948.[back]
  15. Id. at 947.[back]
  16. Id. at 947–48.[back]
  17. 892 S.W.2d 56, 71 (Tex. App.—Houston [1st Dist.] 1994, writ denied).[back]
  18. Id. at 71–72.[back]
  19. Id. at 65, 72.[back]
  20. Id. at 65.[back]
  21. Id. at 71.[back]
  22. Id. at 71.[back]
  23. Id. at 71–72 (emphasis added).[back]
  24. 947 S.W.2d 285, 288 (Tex. App.—Fort Worth 1997, writ denied).[back]
  25. See Bradt, 892 S.W.2d at 72.[back]
  26. Id. at 71 (indicating that an attorney has the duty to zealously represent his clients within the bounds of the law).[back]
  27. Id. at 72.[back]
  28. Id.[back]
  29. Id.[back]
  30. Id.[back]
  31. See Mitchell v. Chapman, 10 S.W.3d 810, 811–12 (Tex. App.—Dallas 2000, pet. denied); see also Lewis v. Am. Exploration Co., 4 F.Supp.2d 673, 679–80 (S.D. Tex. 1998) (dismissing case in favor of law firm accused of withholding documents responsive to opponent’s discovery requests).[back]
  32. Taco Bell Corp. v. Cracken, 939 F.Supp. 528, 532–33 (N.D. Tex. 1996).[back]
  33. Renfroe v. Jones & Assoc., 947 S.W.2d 285, 286–88 (Tex. App.—Fort Worth 1997, writ denied).[back]
  34. Lackshin v. Spofford, No. 14-03-00977-CV, 2004 WL 1965636, at *3–5 (Tex. App.—Houston [14th Dist.] Sept. 7, 2004, pet. denied) (mem. op., not designated for publication).[back]
  35. White v. Bayless, 32 S.W.3d 271, 273 & 274–76 (Tex. App.—San Antonio 2000, pet. denied).[back]
  36. 993 F.Supp. 461, 465 (N.D. Tex. 1998).[back]
  37. Id.[back]
  38. 41 S.W.3d 781, 783 (Tex. App.—Corpus Christi 2001, no pet. h.).[back]
  39. Renfroe v. Jones & Assoc., 947 S.W.2d 285, 286–88 (Tex. App.—Fort Worth 1997, writ denied).[back]
  40. Mendoza, 41 S.W.3d at 787.[back]
  41. Id.[back]
  42. Id. at 788.[back]
  43. Id. at 787–88.[back]
  44. See Bradt v, West, 892 S.W.2d 56, 72 (Tex. App.—Houston [1st Dist.] 1994, writ denied).[back]
  45. Poole v. The H. & T.C. Ry. Co., 58 Tex. 134, 137 (Tex. 1882).[back]
  46. 696 S.W.2d 468, 472 (Tex. App.—Houston [1st Dist.] 1985, no writ h.)[back]
  47. Id. at 472–73.[back]
  48. Id. at 472.[back]
  49. Id.[back]
  50. See e.g. Lackshin v. Spofford, No. 14-03-00977-CV, 2004 WL 1965636, at *4 (Tex. App.—Houston [14th Dist.] Sept. 7, 2004, pet. denied) (mem. op., not designated for publication).[back]
  51. 966 S.W.2d 661, 666–68 (Tex. App.—San Antonio 1998, pet. denied).[back]
  52. Id. at 666.[back]
  53. Id.[back]
  54. Id. at 667–68.[back]
  55. Id. at 666–68.[back]
  56. See Mitchell v. Chapman, 10 S.W.3d 810, 811–12 (Tex. App.—Dallas 2000, pet. denied); see also Lewis v. Am. Exploration Co., 4 F.Supp.2d 673, 679–80 (S.D. Tex. 1998).[back]
  57. See Lewis, 4 F.Supp.2d at 675.[back]
  58. Id. at 679–80.[back]
  59. Id. at 680.[back]
  60. Id. (holding that each claim must be considered in light of the actions shown to have been taken by the attorney in order to determine whether the attorney can be liable for such actions).[back]
  61. 892 S.W.2d 56, 71–72 (Tex. App.—Houston [1st Dist.] 1994, writ denied) (emphasis added).[back]
  62. 41 S.W.3d 781, 787 (Tex. App.—Corpus Christi 2001, no pet. h.).[back]
  63. 10 S.W.3d 810, 811–12 (Tex. App.—Dallas 2000, pet. denied).[back]
  64. 32 S.W.3d 271, 276 (Tex. App.—San Antonio 2000, pet. denied).[back]
  65. 101 S.W.3d 461, 471 (Tex. App.—Amarillo 2001, pet. denied).[back]
  66. Id.[back]
  67. Hanna v. Niemann, No. 03-98-00708-CV, 1999 WL 394894, at *3 (Tex. App.—Austin June 17, 1999, pet. denied) (not designated for publication).[back]
  68. Id. at *1.[back]
  69. Id. at *1–2.[back]
  70. Id. at *2.[back]
  71. Id. at *3.[back]
  72. Id.[back]
  73. Id. at *4.[back]
  74. Mitchell v. Chapman, 10 S.W.3d 810, 812 (Tex. App.—Dallas 2000, pet. denied) (holding that a party’s interest in bringing suit against an opposing counsel for withholding documents requested during discovery is outweighed by the public’s interest in loyal, faithful, and aggressive representation by attorneys employed as advocates).[back]