Doctrine increasingly upheld, but has limits

By C. Thea Pitzen

A state supreme court recently held that attorneys can assert immunity as a defense to claims such as fraud and conversion if the conduct in question is in furtherance of client representation. ABA Section of Litigation leaders see a trend in multiple states upholding the doctrine of attorney immunity. They caution, however, that there are limits to the doctrine and that it should not be considered a “license to misbehave.”

The plaintiff sued the defense attorney for fraud and conversion for mishandling evidence of allegedly faulty brakes.

Bethel v. Quilling

A plaintiff’s husband died in a car accident while towing a trailer. The plaintiff sued the trailer’s manufacturer, alleging that faulty brakes caused the accident. Counsel for the manufacturer disassembled and tested the brakes during the course of discovery, but before plaintiff’s counsel had an opportunity to examine them. The plaintiff then sued the defense attorney (and firm) from the personal injury case for, among other things, fraud and conversion in connection with their handling of the evidence.

The trial court in the second case, Bethel v. Quilling, granted the defendants’ motion to dismiss on the basis of attorney immunity. The court of appeals affirmed. Counsel’s actions were “possibly wrongful,” the court explained, but “were the ‘kinds of actions’ that are part of an attorney’s duties in representing a client in litigation,” such that attorney immunity barred all of the plaintiff’s claims.

Kind of Conduct vs. Alleged Wrongfulness

The Supreme Court of Texas affirmed, specifically declining to recognize an exception to attorney immunity where a third party alleges criminal conduct by an attorney during the course of litigation. The supreme court explained that attorney immunity analysis “focuses on the kind of conduct at issue rather than the alleged wrongfulness of said conduct.” Under that analysis, the court observed, “a lawyer is no more susceptible to liability for a given action merely because it is alleged to be fraudulent or otherwise wrongful.”

The supreme court found that, in essence, the plaintiff’s claim that defense counsel destroyed key evidence was a complaint about the manner in which counsel examined and tested evidence in discovery. “These are paradigmatic functions of an attorney representing a client in litigation,” the court explained. The court held that because counsel’s “allegedly wrongful conduct involved the provision of legal services—specifically, examining and testing relevant evidence—that conduct is protected by attorney immunity.”

Opinion Is Consistent with Other Jurisdictions

While Bethel was decided under Texas law, the holding is “consistent with what we see from courts nationwide that handle issues of attorney immunity or litigation privilege,” states Alanna G. Clair, Washington, DC, cochair of the Attorneys’ Liability Subcommittee of the Section of Litigation’s Professional Liability Litigation Committee.

“When it comes to suits from opposing parties, most jurisdictions have some sort of immunity or privilege for actions taken by attorneys in litigation,” adds Amy S.L. Terwilleger, West Palm Beach, FL, cochair of the Young Lawyers Subcommittee of the Section’s Professional Liability Litigation Committee. In fact, “even if the conduct alleged had been slightly more egregious, the decision would likely have come out the same way,” Terwilleger opines, pointing to intentionally deleting emails as a hypothetical example.

Holdings like that in Bethel are “in line with our thinking that attorneys can and should act zealously for their clients,” explains Clair. If attorneys could face civil liability for such actions from parties other than their client, it could affect both access to courts and the ability of attorneys to zealously represent their own clients, she adds.

Attorney Immunity Is Not a Free Pass

“While we are seeing a trend of attorney immunity being upheld more often, this case is almost an extreme example of that,” observes Nicole M. Reid, Mount Dora, FL, cochair of the Attorneys’ Liability Subcommittee of the Section’s Professional Liability Litigation Committee. “There are commonsense reasons why allegations of criminal conduct or fraud should not bar immunity,” Reid explains. “But we also do not want to give total free rein to attorneys to do anything, knowing they are shielded from third-party liability,” she cautions.

This case is not a “license to misbehave” for attorneys, Reid continues. Even the Bethel opinion drew a line between conduct in furtherance of representation and intentional wrongdoing. For example, the court explained, attorney immunity “may not protect the intentional destruction of evidence—for example, if [counsel] had simply taken a sledgehammer to the brakes.”

Moreover, Reid observes, attorneys should remember that “attorney immunity only bars litigators from civil liability to the opposing party.” It does not provide immunity from discipline by the bar, sanctions by the court, or other remedies, she adds.

Practical Takeaways for Litigators

Coordinating the inspection and testing of evidence with your experts could help prevent accusations of misconduct in the first place. The attorneys in Bethel acted in conjunction with their experts in examining and testing the evidence. This supported the notion that they did not intend to destroy evidence and keep it from everyone else, Clair observes. “Intentionality can sometimes be a factor for courts considering questions of attorney immunity,” adds Clair.

Documentation is key, Section leaders add. “Never schedule the inspection of evidence without coordinating with the other side,” cautions Reid. If for any reason that is not possible, “videotape it and make sure everything is documented,” she advises.

Finally, “do not advise your clients, experts, or anyone to destroy, remove, or test things you can’t get back,” Terwilleger counsels. “Make a copy, then use the copy. If you can’t make a copy, come up with a plan with opposing counsel, and get their agreement in writing,” she advises. If possible, incorporate the agreement into a court order, Terwilleger concludes.

C. Thea Pitzen is an associate editor for Litigation News.

Related Resources

• Youngkin v. Hines, 546 S.W.3d 675 (Tex. 2018).
• Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477 (Tex. 2015).
• Benjamin E. Long, “Intentional Spoliation Causes a Purple Rain of Sanctions,” Litigation News (Dec. 18, 2019).
• Joseph Laizure, “Bad Faith Deletion of Emails Warrants Punitive Sanctions,” Litigation News (Sept. 17, 2016).

©2020 Reprinted with permission from the American Bar Association. All rights reserved.