Attorney Immunity Bars Claims for Fraud and Conversion

AuthorC. Thea Pitzen
Pages6-6
Published in Litigation News Volume 47, Number 2, Winter 2022. © 20 22 by the American Bar A ssociation. Repro duced with permissio n. All rights reser ved. This informati on or any portion the reof may not be copie d or disseminated in any
form or by any means or sto red in an electronic da tabase or retrieval sy stem without the ex press writt en consent of the Amer ican Bar Associatio n.
ttorneys can assert immunity
as a defense to claims such
as fraud and conversion
if the conduct in ques-
tion is in furtherance of
client representation. ABA Litigation
Section leaders see a trend in multiple
states upholding the doctrine of attor-
ney immunity. They caution, however,
that there are limits to the doctrine
and that it should not be considered a
“license to misbehave.”
A plainti’s husband died in a car
accident while towing a trailer. The
plainti sued the trailer’s manufacturer,
alleging that faulty brakes caused
the accident. Counsel for the manu-
facturer disassembled and tested the
brakes during the course of discov-
ery, but before plainti’s counsel had
an opportunity to examine them. The
plainti then sued the defense attor-
ney (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, dismissed it on the
basis of attorney immunity. The court of
appeals armed, explaining that coun-
sel’s actions were “possibly wrongful,
[but] were the ‘kinds of actions’ that are
part of an attorney’s duties in represent-
ing a client in litigation.”
The Supreme Court of Texas
armed, declining to recognize an
exception to attorney immunity where a
third party alleges criminal conduct by
an attorney during the course of litiga-
tion. 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 sus-
ceptible to liability for a given action
merely because it is alleged to be
fraudulent or otherwise wrongful.”
The supreme court found that the
plainti’s claim that defense counsel
destroyed key evidence was a com-
Attorney Immunity Bars Claims for
Fraud and Conversion
plaint about the manner in which coun-
sel examined and tested evidence in
discovery. “These are paradigmatic
functions of an attorney representing a
client in litigation,” the court explained.
It held that because counsel’s “alleg-
edly wrongful conduct involved the
provision of legal services—specif‌ically,
examining and testing relevant evi-
dence—that conduct is protected by
attorney immunity.
The Bethel holding is “consistent
with what we see from courts nation-
wide that handle issues of attorney
immunity or litigation privilege,”
states Alanna G. Clair, Washington,
DC, cochair of the Attorneys’ Liability
Subcommittee of the Litigation
Section’s Professional Liability
Litigation Committee.
“When it comes to suits from
opposing parties, most jurisdictions
have some sort of immunity or privi-
lege 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. “Even if the conduct alleged
had been slightly more egregious, the
decision would likely have come out the
same way,” Terwilleger opines.
“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 com-
monsense 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 lia-
bility,” she cautions.
This case is not a “license to mis-
behave” for attorneys, Reid continues.
Even the Bethel opinion drew a line
between conduct in furtherance of rep-
resentation and intentional wrongdo-
ing. As the court explained, attorney
immunity “may not protect the inten-
tional destruction of evidence—for
example, if [counsel] had simply taken
a sledgehammer to the brakes.” And
attorney immunity only bars litiga-
tors from civil liability to the opposing
party. It does not provide immunity
from discipline by the bar, court sanc-
tions, or other remedies, Reid adds.
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 conjunc-
tion with their experts in examining
and testing the evidence. This sup-
ported the notion that they did not
intend to destroy evidence and keep
it from everyone else, Clair observes.
“Intentionality can sometimes be a fac-
tor for courts considering questions of
attorney immunity,” adds Clair.
Documentation is key. “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 oppos-
ing counsel, and get their agreement in
writing,” Terwilleger concludes.
RESOURCES
Bethel v. Quilling, No. 18-05 95 (Tex.
2019).
Ben jamin E. Long, “Inte ntional Spoliation
Causes a Pur ple Rain of Sanctions ,”
Litigation News (Dec . 18. 2019).
Jose ph Laizure, “Bad Faith D eletion of
Emails Warrant s Punitive Sanctions ,”
Litigation News (Sept . 17, 2016).
By C. Thea Pitzen , Litigation News Associate Editor
6 | LITIGATION SECTIO N
ETHICS STR UGGLES IN THE LEGAL WOR LD

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