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
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| TEXAS LAWYER article on Attorney Immunity Ruling |
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