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Holes in the Attorney
Immunity Defense
By Sara E. Costello,
Litigation News
Associate Editor
Attorney Immunity Defense
The Taylor court explained that Texas
state common law protects attorneys
from civil liability when they are dis-
charging their professional duties to
a client. By “removing the fear of per-
sonal liability,” the attorney immunity
defense encourages attorneys to zeal-
ously represent their clients, it said.
To be protected by the common-law
immunity defense, the challenged con-
duct must involve “the attorney’s skills
as an attorney,” the court emphasized.
But if an attorney’s conduct is not
“lawyerly work,” is “entirely foreign to
the duties of a lawyer,” or “falls outside
the scope of client representation,” the
attorney immunity defense does not
apply, the court explained.
Relying on the attor ney immunit y
defense, the attor ney moved for sum-
mary judgment. S he argued that a ll
of the wiretap cla ims were based on
her conduct as an attorne y in the cus-
tody dispute.
Although t he 309th Distr ict Court,
Harris Cou nty, Texas, found in favor
of the attorney, the Cour t of Appeals
for the Fourteenth D istrict of Texas
reversed the t rial court’s ruling. The
Tex as, Texas Penal Co de § 16.02,
wiretap statut es. The lawsuit al leged
that the attorney i mproperly “used”
and “disclosed” illegal ly intercepted
electronic commun ications.
According to the suit , the attor-
ney violated the law by, among other
things, th reatening to use the nude pho-
tograph of the mother as a pos ter-size
demonstrative exh ibit in trial , using the
text messages a nd emails to pressure
the mother to resolve the cu stody case,
and disclosing t he illegally intercepted
communication s to the court.
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 ques-
tionable 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 fa mily law
case. Whi le using a family member’s
iPad, the child i nvolved in the case
discovered text me ssages and emails
between her mothe r and about 30 other
people. One of the text s included a
nude photograph that the mother h ad
sent to her boyfriend. T he father shared
these commun ications with his attorney
for use in child cus tody proceedings.
The child’s mother sued the father’s
attorney, alleging t hat she violated
federal, 18 U.S.C. § 2511(1), and
14 | ABA LITIGATION SECTIO N FALL 2022 • VOL. 4 8 NO. 1
