Special interest jurisprudence for Texas lawyers from the State's High Court raises concerns - Second thoughts on Cantey Hanger LLP v. Byrd (Tex. 2015) and whether this is good news for attorneys

As the 2016 election season gets under way, and judicial campaigns are being launched or reactivated (in case of incumbents), the Texas Supreme Court is handing down rulings bound to please Texas attorneys by strengthening their hand vis-a-vis clients and non-clients alike.

Or so it may seem.

TEXAS SUPREME COURT LOWERS THE BAR FOR ATTORNEY'S DEALINGS WITH CLIENT AND NON-CLIENTS 

Just in time for the start of the 2016 election season, the Texas Supreme Court is throwing some gifts at its most captive constituency, Texas attorneys.

While attorneys make up only a small part of the electorate, they are nevertheless important because an even smaller number of them participates in bar-sponsored judicial evaluations and polls. Judicial candidates like to point to the results of these polls when they are in their favor, and use them to promote themselves as the candidate of choice. Which is particularly important in primary elections, since party affiliation does not provide a voting cue in such intra-party contests.

Here are the latest offerings of the Texas Supreme Court to the legal profession, which it regulates, both handed down on June 26, 2016: Official mark of approval for one-sided attorney-client agreements and attorney immunity to civil claims by opponents.

LEGAL SERVICES ARBITRATION AGREEMENTS WITH FEE-DISPUTE CARVE-OUT 

In Royston, Rayzor, Vickery & Williams, L.L.P. v. Lopez the Court held that there was nothing inherently objectionable ("unconscionable") about a one-sided legal services agreement that forces the client to arbitrate any claims he or she may have against the attorney/lawfirm (most notably, of course, legal malpractice), but allows the legal service provider to take the client to court for not paying the firm's bill. The lawfirm can thus keep its dirty linen out of court (arbitration is private) but will not have the hassle of having to arrange for arbitration and then having to seek confirmation of arbitration award to collect from the client.

The bottom line: Legal malpractice claims can be removed from the court system, and thus from public (and media) scrutiny because arbitration does not create a paper trail in the nature of a public record. Nor an electronic one on the Internet (which makes arbitration proceedings even more attractive, given that trial court records are increasingly available online, too, not just appellate filings and opinions).

But the second decision is even more noteworthy. And more troubling, -- not only for the interests of the public at large, but for the integrity of the legal profession, and the soundness of the Texas Supreme Court's supervision thereof.

JUDICIAL PROCEEDINGS IMMUNITY BECOMES BLANKET ATTORNEY IMMUNITY 

In Cantey Hanger, LLP v Byrd, a majority of the Court granted attorneys immunity from lawsuits brought by opponents that are based on the attorney's (or law firm's) conduct while representing a client. The questionable conduct at issue in that case involved the alleged preparation of a fraudulent bill of sale. The opinion was written by Justice Lehrmann. To his credit, Justice Green, who is also seeking re-election, dissented.

But are all Texas attorneys' interests really well served by a blanket rule that says you cannot sue an opposing counsel for misconduct committed to advance the interests of his or her client? 

I would submit that the answer is No.

First, most attorneys never face a lawsuit by an opposing party or attorney, meritorious or otherwise. So, they have no occasion to benefit from the immunity ruling.

Second, the immunity effectively shields only those that might otherwise be liable for wrongdoing. For, if a litigant's claim against the opposing counsel has no merit at all, the defendant-attorney could simply invoke the newish dismissal rule designed specifically for quickie dispatch of frivolous lawsuits (RULE 91a), and might even collect attorney's fees upon dismissal of the baseless lawsuit.

An ethical attorney faced with a frivolous claim has no need for blanket immunity from civil lawsuits brought by a disgruntled opponent because the frivolous claim would fail just for that very reason. And it would fail early. A motion to dismiss under Rule 91a must be filed within 60 days after the first pleading containing the challenged cause of action is served on the movant, and must be granted or denied within 45 days from the filing date.

MERITS-PRECLUSIVE IMMUNITY DOCTRINE SHIELDS ATTORNEYS WHO ENGAGE IN MISCONDUCT 

What the blanket immunity from civil suit by non-clients effectively does is to shield wayward attorneys from meritorious claims against them. As such, the common-law immunity is one that mostly clearly confers an advantage upon unethical attorneys by protecting them from being held accountable for their misdeeds through the civil justice system.

There is still the attorney disciplinary system, of course, but as the Court informed us a few years ago, and reminds us in Royston, Rayzor, Vickery & Williams, L.L.P. v. Lopez, the Disciplinary Rules are not binding as substantive law regarding attorneys, although they inform that law. In re Meador, 968 S.W.2d 346, 350 (Tex. 1998). And when a disciplinary complaint is filed by a party opponent, it is inherently less likely to be effective because it is assumed at the outset that the complainant is a sore loser with a retaliatory motive.

And a non-client cannot sue the attorney on the other side of a dispute or court case for legal malpractice because there is no privity of contract between them.

It would seem that rotten scoundrels have the most to gain from the majority opinion of the Texas Supreme Court in Cantey Hanger, LLP v. Philip Gregory Byrd et al. (Tex. 2015).

By contrast, Texas attorneys with high ethical standards who treat their opponents respectfully and honestly rather than underhandedly, have nothing to gain. They may even be harmed to the extent they are placed at a competitive disadvantage, or suffer a direct negative impact on their cases and clients, as a result of the deterrent to wrongful conduct by unethical attorneys on the other side of the case have been removed by the Supreme Court's blanket grant of attorney immunity for acts committed in the rendition of legal services.

It is the Texas Supreme Court's latest addition to its immunity jurisprudence, which -- over the years -- has significantly reduced the availability of the civil justice system to the public, and shrunk its ability to performance its core function.

CITATIONS WITH LINK TO OPINIONS AND DOCKET SHEET: 

Cantey Hanger, LLP v. Philip Gregory Byrd et al, No. 13-0861 (Tex. June 26, 2015). Justice Lehrmann delivered the opinion of the Court, joined by Justice Guzman, Justice Boyd, Justice Devine, and Justice Brown. Justice Green delivered a dissenting opinion, which was joined by Chief Justice Hecht, Justice Johnson, and Justice Willett.
 
Royston, Rayzor, Vickery & Williams, L.L.P. v. Francisco "Frank" Lopez No. 13-1026 and No. 14-0109 (Tex. Jun. 26, 2015); from Nueces County; 13th Court of Appeals District (13-11-00757-CV, 443 SW3d 196, 06-27-13)
Justice Johnson delivered the opinion of the Court. Justice Guzman delivered a concurring opinion, in which Justice Lehrmann and Justice Devine joined.

WHAT OTHERS ARE SAYING ABOUT THIS CASE

TEXAS LAWYER article on Attorney Immunity Ruling 

J.B. v H.B. Same-sex divorce case - Death of respondent moots Texas Supreme Court appeal

UNTIL DEATH DO US PART: Long-pending same-sex divorce appeal dismissed as moot following death of one of the parties. 
  
According to a motion to dismiss filed by the petitioner in J.B v. H.B., the respondent in the trial court, H.B. [Henry Buck], died on April 11, 2015, thus rendering the appeal moot. The State agreed, and the case was dismissed by the Texas Supreme Court on June 19, 2015, the same day it issued its opinion in State of Texas v. Daly, the same-sex divorce case from Austin involving a lesbian couple. 

Texas Supreme Court's postcard to deceased same-sex spouse
in same-sex divorce case J.B. v. H.B. who mooted the pending appeal by his death.  

The Attorney General representing the State of Texas did insist, however, that the opinion issued by the Dallas Court of Appeals -- which favored the State -- not be vacated. In re Marriage of J.B. & H.B ., 326 S.W.3d 654 (Tex.App. - Dallas, 2010). 

In re State of Texas, Relator

No. 05-09-01170-CV

Court of Appeals of Texas, Dallas.

August 31, 2010.

Supplemental Opinion on Denial of En Banc Reconsideration December 8, 2010.

Before Justices BRIDGES, FITZGERALD, and FILLMORE.

OPINION

Opinion By Justice FITZGERALD.

Does a Texas district court have subject-matter jurisdiction over a divorce case arising from a same-sex marriage that occurred 659*659 in Massachusetts? The trial court held that it had jurisdiction and that article I, section 32(a) of the Texas Constitution and section 6.204 of the Texas Family Code, which limit marriage to opposite-sex couples, violate the Equal Protection Clause of the Fourteenth Amendment. We hold that Texas district courts do not have subject-matter jurisdiction to hear a same-sex divorce case. Texas's laws compelling this result do not violate the Equal Protection Clause of the Fourteenth Amendment.

Accordingly, we reverse the trial court's order and remand with instructions to dismiss the case for lack of subject-matter jurisdiction. We also conditionally grant the State's petition for writ of mandamus to correct the trial court's erroneous striking of the State's petition in intervention.

I. BACKGROUND

Appellee filed a petition for divorce in Dallas County in which he sought a divorce from H.B., whom appellee alleged to be his husband. Appellee alleged that he and H.B. were lawfully married in Massachusetts in September 2006 and moved to Texas in 2008. Appellee further alleged that he and H.B. "ceased to live together as husband and husband" in November 2008.

Appellee alleged in his divorce petition that there are no children of the marriage, born or adopted, and he requested a division of community property if a property-division agreement could not be reached. He prayed for a divorce, that his last name be changed back to his original last name, and "for general relief." The record contains no answer by H.B.

A few days after appellee filed suit, the State intervened in the action "as a party respondent to oppose the Petition for Divorce and defend the constitutionality of Texas and federal law." The Texas laws in question are article I, section 32(a) of the Texas Constitution and section 6.204 of the Texas Family Code. The federal law in question is the Defense of Marriage Act (DOMA), 28 U.S.C. § 1738C.[1] The State alleged that appellee is not a party to a "marriage" under Texas law, that he is therefore not eligible for the remedy of divorce, and that the trial court cannot grant a divorce without violating Texas law. At the end of its petition in intervention, the State prayed for dismissal of the petition for divorce.

Several weeks later, the State filed a plea to the jurisdiction in which it asserted, inter alia, that the trial court lacked subject-matter jurisdiction because appellee's petition demonstrated on its face that he and H.B. were not "married" as a matter of Texas law. The State asserted that section 6.204(c) of the family code "strips courts of jurisdiction" to confer the legal status of marriage upon any relationship besides the union of one man and one woman—even if only for the purpose of granting a divorce.

The trial court denied the State's plea to the jurisdiction without a hearing. In its order, the court concluded that article I, section 32(a) of the Texas Constitution and section 6.204 of the family code violate the Equal Protection Clause of the Fourteenth Amendment. It further concluded that it 660*660 had jurisdiction "to hear a suit for divorce filed by persons legally married in another jurisdiction and who meet the residency and other prerequisites required to file for divorce in Dallas County, Texas." It ordered "that Intervenor's Plea to the Jurisdiction is denied and that the Intervention filed by the Office of the Attorney General is hereby stricken." The State filed its notice of interlocutory appeal the day after the trial court signed the order. A few days later, the State filed its Conditional Petition for Writ of Mandamus in this Court seeking relief from the part of the trial court's order striking its petition in intervention.

Within twenty days after the court signed the order, appellee filed a request for findings of fact and conclusions of law. The State opposed the request. A few weeks later, the trial court signed both a set of findings of fact and conclusions of law and an amended order denying the State's plea to the jurisdiction. In the amended order, the court made no reference to article I, section 32 of the Texas Constitution, concluded that section 6.204 of the family code violated several provisions of the federal Constitution in addition to the Equal Protection Clause, and concluded that the State lacked both constitutional and statutory authority to intervene. The amended order concluded, "Therefore, the State's Plea to the Jurisdiction is denied and the Intervention filed by the Office of the Attorney General is hereby stricken."

We have consolidated the State's mandamus proceeding with its interlocutory appeal.

Texas Supreme Court split on AG's appeal of same-sex divorce decree: Majority votes to uphold dismissal for procedural reasons, Justice Willett and two of his peers would have created special rule to permit Attorney General to pursue appeal in the highest court

 
TEXAS SUPREME COURT FINALLY TURNS AWAY ATTORNEY GENERAL'S ATTACK ON SAME-SEX DIVORCE DECREE WITHOUT DECIDING THE CONSTITUTIONAL ISSUES, WHICH AWAIT DECISION IN OTHER PENDING CASES  

While the same-sex marriage cases from Travis County (Austin) remain under review, the Texas Supreme Court last Friday (6/19/2015) disposed of two long-pending same-sex divorce cases from Dallas and Austin, respectively. The case from Dallas, which involved two men, was dismissed because one of the parties had died in the interim. Opinion below: In re Marriage of J.B. and H.B., 326 S.W.3d 654 (Tex. App.—Dallas 2010, pet. dism’d). --> Death of same-sex spouse moots Texas Supreme Court appeal.

The other one involved a lesbian couple, Angelique Naylor and Sabina Daly, who had married in Massachusetts and were residents of Texas at the time their relationship failed. After one of them brought a contested suit for divorce, they subsequently settled their differences, resulting in the grant of an agreed divorce. The Attorney General sought to invalidate the judgment after the fact, but was unsuccessful in the courts below.  State v. Naylor, 330 S.W.3d 434 (Tex. App.—Austin 2011).

In the Supreme Court, the AG undertook a two-pronged approach - an appeal from the dismissal by the Austin Court of Appeals and a request for mandamus relief. The attempt to  overturn the divorce decree ultimately resulted in rejection by the Supreme Court for procedural reason. State of Texas v. Naylor, No. 11-0114 (Tex. June 19, 2015)("We agree with the court of appeals that the State lacks standing to appeal the trial court’s decree.").

As it should. The Attorney General had intervened in the Austin case only after the agreed divorce had been granted by the trial judge. The trial court judge disapproved the AG's belated post-judgment intervention and the Third Court of Appeal in Austin dismissed the Attorney General's attempted appeal as a non-party for want of standing and resultant lack of jurisdiction. The Supreme Court likewise found that it couldn't reach the merits because they were not properly before the court.

The Attorney General was the only one to challenge the agreed decree of divorce, and did not have standing to do so because the State was not a party to the case.

But the Supreme Court's resolution was not unanimous, which is the likely reason why it took so long for the court the decide the case. Justice Willett would have exempted the Attorney General from having to play by the same rules, and would have allowed the AG pursue his attack on the same-sex divorce decree even though he had not filed a petition in intervention in a timely fashion. The AG failed to do so fully aware of the pendency of the case involving the same-sex couple. Representative of the Attorney General were even in attendance at the hearing that resulted in an agreed resolution.

Partial snip of June 19, 2016 Orders List, which has links to opinions
and Supreme Court dockets 

Justices Guzman and Justice Devine joined Willett's dissent. Devine also wrote a separate opinion that addressed the merits of the constitutional issues that majority did not reach. Justice Willett nevertheless complained that the State had not been afforded a hearing. Even though the State had made its case in the Third Court of Appeals as well as in the Supreme Court. The majority decided the the merits could not be reached for procedural reasons, but that hardly means that they did not read the briefs and did not ponder the State's arguments.

Justice Boyd sided with the majority, but also wrote a separate concurrence, stressing that the State was not bound by the divorce decree. Lehrmann abstained, with no reasons given. The case was thus resolved on a 5 to 3 vote. But it was not resolved on the merits of the underlying issue: the validity of Texas law as to non-recognition of same-sex marriages. That is the pivotal issue in the cases that remain pending, one involving the grant of a same-sex marriage license pursuant to a district court's order, the other one involving the claim of a common law marriage, and claim to a share of the estate under the intestacy laws, in the probate context.

The case numbers in the Supreme Court are 15-0139 and 15-0135 respectively. Both cases are styled In Re State of Texas. 

Oddly, Attorney General Paxton released a statement shortly after the Texas Supreme Court confirmed that the lack-of-jurisdiction dismissal of State v Daly was proper in which he asserting that the Court effectively recognized same-sex divorce in Texas. Paxton further complained that the Attorney General should always have a voice in the discussion when the Texas Constitution is at risk. As if the AG did not get a chance to brief its case in two appellate courts, first in the Third Court of Appeals and in then in the Supreme Court of Texas, not to mention being granted oral argument. What Ken Paxton was obviously unhappy about is that the Court did not rule in his favor on the merits.

THE ATTORNEY GENERAL'S BRIEF 

ADDRESSED THE U.S. CONSTITUTIONAL ARGUMENTS 

[Snippet from relevant portion of Table of Contents] 

Editorial note: This post was updated 6/23/2015 
  

IN THE SUPREME COURT OF TEXAS

NO. 11-0114

STATE OF TEXAS, PETITIONER,

v.

ANGELIQUE NAYLOR AND SABINA DALY, RESPONDENTS

ON PETITION FOR REVIEW FROM THE

COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS

- consolidated with -

NO. 11-0114 

IN RE STATE OF TEXAS, RELATOR

ON PETITION FOR WRIT OF MANDAMUS

Argued November 5, 2013

JUSTICE BROWN delivered the opinion of the Court, in which CHIEF JUSTICE HECHT, JUSTICE

GREEN, JUSTICE JOHNSON, and JUSTICE BOYD joined.

JUSTICE BOYD filed a concurring opinion.

JUSTICE WILLETT filed a dissenting opinion, in which JUSTICE GUZMAN and JUSTICE DEVINE

joined.

JUSTICE DEVINE filed a dissenting opinion.

JUSTICE LEHRMANN did not participate in the decision.

This case arises from the State’s attempt to intervene in a civil action after the trial court had

already rendered final judgment. We must determine whether the court of appeals erred in holding

The State lacks standing to appeal the judgment and, if not, whether the State is entitled to mandamus

relief. We answer both questions in the negative, affirming the decision of the court of appeals and

denying the State’s petition for writ of mandamus.

I

Texas residents Angelique Naylor and Sabina Daly were married in Massachusetts in 2004.

A few years later, Naylor filed for divorce in Travis County. Because the two women were raising

a child and operating a business together, Naylor hoped to obtain a judgment addressing their

respective rights, some of which they had already settled in a suit affecting the parent-child

relationship (“SAPCR”).

The State of Massachusetts indisputably recognizes this same-sex marriage. Texas, however,

adheres to the traditional definition of marriage and does not recognize same-sex unions. Our

constitution unambiguously provides that “[m]arriage in this state shall consist only of the union of

one man and one woman.” TEX. CONST. art. I, § 32(a). And while other states allow same-sex

unions, Texas is not “required to give effect to any public act, record, or judicial proceeding of any

other State . . . that is treated as a [same-sex] marriage under the laws” of that state. 28 U.S.C. 

§ 1738C; see also TEX. FAM. CODE § 6.204(c)(1) (indicating Texas courts may not “give effect” to

such arrangements).

The new Texas Rules of Evidence (TRE) Where to find them online

TEX. R. EVID. (2015) (all of them)

The most recent update of rules governing the litigation process in Texas courts involves the Texas Rules of Evidence. The Texas Supreme Court re-promulgated the entire set of rules, mostly without substantives changes. They went into effect on April 1, 2015.

The new rules were duly published in the Texas Bar Journal, the official organ of the State Bar of Texas, but a more user-friendly version is available on-line on the Texas Judiciary's website. The entire set is available as a single pdf file (58 pages), which is text-searchable either online, or when downloaded and saved to hard disk. Here is the link:

-->  Texas Rules of Evidence (effective April 1, 2015) (pdf)
Link to -->  menu with links to all Texas Rules of Court 

Unfortunately, there are no hotlinks from the Table of Contents (reproduced below) and no internal hyperlinks (which have made the on-line Texas Statutes much more user-friendly).

http://www.txcourts.gov/rules-forms/rules-standards.aspx 

TEXAS RULES OF EVIDENCE

Effective April 1, 2015

TABLE OF CONTENTS 

ARTICLE I. GENERAL PROVISIONS
Rule 101. Title, Scope, and Applicability of the Rules; Definitions
Rule 102. Purpose
Rule 103. Rulings on Evidence
Rule 104. Preliminary Questions
Rule 105. Evidence That Is Not Admissible Against Other Parties or for Other Purposes
Rule 106. Remainder of or Related Writings or Recorded Statements
Rule 107. Rule of Optional Completeness

ARTICLE II. JUDICIAL NOTICE
Rule 201. Judicial Notice of Adjudicative Facts
Rule 202. Judicial Notice of Other States’ Law
Rule 203. Determining Foreign Law
Rule 204. Judicial Notice of Texas Municipal and County Ordinances, Texas Register
Contents, and Published Agency Rules

ARTICLE III. PRESUMPTIONS
Rule 301. [No Rules Adopted at This Time]

ARTICLE IV. RELEVANCE AND ITS LIMITS
Rule 401. Test for Relevant Evidence
Rule 402. General Admissibility of Relevant Evidence
Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, or Other Reasons
Rule 404. Character Evidence; Crimes or Other Acts
Rule 405. Methods of Proving Character
Rule 406. Habit; Routine Practice
Rule 407. Subsequent Remedial Measures; Notification of Defect
Rule 408. Compromise Offers and Negotiations
Rule 409. Offers to Pay Medical and Similar Expenses
Rule 410. Pleas, Plea Discussions, and Related Statements
Rule 411. Liability Insurance
Rule 412. Evidence of Previous Sexual Conduct in Criminal Cases

ARTICLE V. PRIVILEGES
Rule 501. Privileges in General
Rule 502. Required Reports Privileged By Statute
Rule 503. Lawyer–Client Privilege
Rule 504. Spousal Privileges
Rule 505. Privilege For Communications to a Clergy Member
Rule 506. Political Vote Privilege
Rule 507. Trade Secrets Privilege
Rule 508. Informer’s Identity Privilege
Rule 509. Physician–Patient Privilege

2

Rule 510. Mental Health Information Privilege in Civil Cases
Rule 511. Waiver by Voluntary Disclosure
Rule 512. Privileged Matter Disclosed Under Compulsion or Without Opportunity to
Claim Privilege
Rule 513. Comment On or Inference From a Privilege Claim; Instruction

ARTICLE VI. WITNESSES
Rule 601. Competency to Testify in General; “Dead Man’s Rule”
Rule 602. Need for Personal Knowledge
Rule 603. Oath or Affirmation to Testify Truthfully
Rule 604. Interpreter
Rule 605. Judge’s Competency as a Witness
Rule 606. Juror’s Competency as a Witness
Rule 607. Who May Impeach a Witness
Rule 608. A Witness’s Character for Truthfulness or Untruthfulness
Rule 609. Impeachment by Evidence of a Criminal Conviction
Rule 610. Religious Beliefs or Opinions
Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence
Rule 612. Writing Used to Refresh a Witness’s Memory
Rule 613. Witness’s Prior Statement and Bias or Interest
Rule 614. Excluding Witnesses
Rule 615. Producing a Witness’s Statement in Criminal Cases

ARTICLE VII. OPINIONS AND EXPERT TESTIMONY
Rule 701. Opinion Testimony by Lay Witnesses
Rule 702. Testimony by Expert Witnesses
Rule 703. Bases of an Expert’s Opinion Testimony
Rule 704. Opinion on an Ultimate Issue
Rule 705. Disclosing the Underlying Facts or Data and Examining an Expert About
Them
Rule 706. Audit in Civil Cases

ARTICLE VIII. HEARSAY
Rule 801. Definitions That Apply to This Article; Exclusions from Hearsay
Rule 802. The Rule Against Hearsay
Rule 803. Exceptions to the Rule Against Hearsay—Regardless of Whether the
Declarant Is Available as a Witness
Rule 804. Exceptions to the Rule Against Hearsay—When the Declarant Is Unavailable
as a Witness
Rule 805. Hearsay Within Hearsay
Rule 806. Attacking and Supporting the Declarant’s Credibility

ARTICLE IX. AUTHENTICATION AND IDENTIFICATION
Rule 901. Authenticating or Identifying Evidence
Rule 902. Evidence That Is Self-Authenticating
Rule 903. Subscribing Witness’s Testimony

3

ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS
Rule 1001. Definitions That Apply to This Article
Rule 1002. Requirement of the Original
Rule 1003. Admissibility of Duplicates
Rule 1004. Admissibility of Other Evidence of Content
Rule 1005. Copies of Public Records to Prove Content
Rule 1006. Summaries to Prove Content
Rule 1007. Testimony or Statement of a Party to Prove Content
Rule 1008. Functions of the Court and Jury
Rule 1009. Translating a Foreign Language Document

 FINAL APPROVAL OF AMENDMENTS TO TEXAS RULES OF EVIDENCE

March 10, 2015 Texas Supreme Court Order

(pages 1-3 only, signature page and Texas CCA companion order omitted)

Link to full order here (pdf)