Working With A Net ' Attorney Immunity For Texas Transactional Lawyers

• Jurisdiction: Texas,United States
• Law Firm: Rapp & Krock
• Subject Matter: itigation, Mediation & Arbitration, Law Department Performance, Trials & Appeals & Compensation, Workflow and Workload Management
• Author: Ms Kelly M. Christy
• Published date: 14 March 2023

If you are a transactional attorney, you can now rest easy knowing that the attorney immunity doctrine protects you from claims brought by the other party in the transaction so long as your conduct meets the recent standard announced by the Texas Supreme Court. Before May of this year, transactional attorneys had been left wondering whether the attorney immunity doctrine extended outside the litigation context. This placed transactional attorneys in a tough situation which required attorneys to fulfill their ethical obligation to zealously represent their clients while also subjecting themselves to the risk of liability to the other side in commercial transactions.

The Texas Supreme Court had previously made clear that the attorney immunity doctrine provides substantial protections against opposing parties when litigators zealously advocate for their clients in litigation matters. See Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477 (Tex. 2015). However, prior to May 21, 2021, the Texas Supreme Court had not addressed whether attorney immunity also applies to transactional matters, leaving the courts of appeals to make guesses concerning the scope of the doctrine. See Troice v. Greenberg Traurig, LLP, 921 F.3d 501, 506 (5^th Cir. 2019) (discussing the trend among the courts of appeals toward viewing immunity in a comprehensive manner which "most likely...includes the multitude of attorneys that routinely practice and advise clients in non-litigation matters").

However, in its recent decision, the Texas Supreme Court finally clarified the issue and held that attorney immunity applies in all adversarial contexts in which an attorney must zealously and loyally represent his or her client, so long as the conduct constitutes the "kind" of conduct attorney immunity protects. Haynes & Boone, LLP v. NFTD, LLC, 631 S.W.3d 65 (Tex. 2021). Thus, attorney immunity protects an attorney against a non-client's claim when the claim is based on (1) conduct that constitutes the provision of "legal" services involving the unique office, professional skill, training, and authority of an attorney and (2) conduct that the attorney engages in to fulfill the attorney's duties in representing the client within an adversarial context in which the client and the non-client do not share the same interests and therefore the non-client's reliance on the attorney's conduct is not justifiable. Id.

Not only did the Court clearly expand immunity to protect attorney conduct in the...