It was good news and bad news from the Texas Supreme Court Friday for lawyers accused of wrongdoing.
The good news decision ends a widow’s claim against a law firm representing a trailer manufacturer she had sued for destroying evidence of a trailer’s faulty brakes. The court held that the firm and one of its lawyers were entitled to attorney immunity and that lower courts had properly dismissed the lawsuit.
The good news decision ends a widow’s claim against a law firm representing a trailer manufacturer she had sued for destroying evidence of a trailer’s faulty brakes. The court held that the firm and one of its lawyers were entitled to attorney immunity and that lower courts had properly dismissed the lawsuit.
The bad news ruling permits an attorney once convicted of forging a will to pursue her legal malpractice lawsuit claim against her criminal defense lawyer. The court, in a 6-3 ruling, said the lawsuit could move forward under the Peeler doctrine because the woman had presented evidence of her exoneration.
The court also ruled that her nine-year-old lawsuit was not barred by the two-year statute of limitations because she was waiting for prosecutors to decide whether she would be retried. Legal observers say the case could increase the exposure of criminal defense lawyers to malpractice claims.
Attorney immunity
After Cherlyn Bethel’s husband, Ronald, died in a 2015 car accident while towing a trailer, she sued the trailer’s manufacturer, alleging the trailer’s faulty brakes caused the accident. The manufacturer was represented by Dallas law firm Quilling, Selander, Lownds, Winslett & Moser and firm attorney James “Hamp” Moody.
Bethel later sued the Quilling firm for allegedly intentionally destroying key evidence by disassembling and testing the trailer’s brakes before Bethel’s experts had the opportunity to examine them. The firm argued it was entitled to attorney immunity and the trial court dismissed the case on a motion under civil procedure Rule 91a, which requires dismissal of baseless causes of action.
The 5th Court of Appeals in Dallas affirmed in 2018, reasoning that the law firm’s actions, while possibly wrongful, were the type that are part of an attorney’s duties in representing a client in litigation.
At the Supreme Court, Bethel argued that courts may not consider a defendant’s pleading in making a Rule 91 a determination. But a unanimous court said the rule limits the scope of a court’s factual, but not legal, inquiry, if the facts alleged do not entitle the claimant to the relief sought.
“In this case, the allegations in Bethel’s petition show that Bethel is not entitled to relief,” said Justice John Devine. “In its Rule 91a motion, Quilling simply argued that the facts – as Bethel pleaded them – entitled Quilling to attorney immunity and thus dismissal under Rule 91a. The trial court did not need to look outside Bethel’s pleadings to determine whether attorney immunity applied to the alleged facts.”
The court also rejected Bethel’s contention that an attorney’s criminal conduct should be an exception to attorney immunity. “Because Quilling’s allegedly wrongful conduct involved the provision of legal services – specifically, examining and testing relevant evidence – that conduct is protected by attorney immunity,” said Devine.
The Quilling firm was represented by Marcie Schout of the firm. Bethel was represented by Jessica Foster of Kelly, Durham & Pittard.
Criminal defense lawyer malpractice
Utopia attorney Patricia Skelton’s malpractice suit against Kerrville attorney Guy James Gray gave the Supreme Court reason to revisit its plurality opinion in 1995’s Peeler v. Hughes & Luce.
In Peeler, Carol Peeler had signed a plea agreement while under Darrell Jordan’s advisement admitting guilt to aiding and assisting the filing of a false and fraudulent tax return in exchange for numerous other charges being dropped. Peeler later sued Jordan, alleging that he failed to tell her that the government had offered her transactional immunity if she testified against her colleagues.
The Supreme Court held in Peeler that convicted individuals may not sue their criminal-defense lawyers for malpractice unless “they have been exonerated on direct appeal, through post-conviction relief, or otherwise.”
Skelton was charged with forging a deceased client’s will by copying her client’s signature from a flood-damaged document onto a digital copy of the will. After being convicted in 2007, she sued Gray.
After a probate court found the will that Skelton filed was valid, she filed an application for a writ of habeas corpus in the district court. It was denied but in 2014 the 4th Court of Appeals in San Antonio granted Skelton habeas relief.
On the malpractice claim, the trial court dismissed on Gray’s argument that Skelton was not exonerated and that the two-year statute of limitations barred her claim. The appeals court reversed the dismissal.
The Supreme Court disagreed that Skelton must be declared actually innocent before she may initiate her claims. Justice Devine, writing for the majority, said that innocence can be established in more than one way.
“It can be established in the underlying criminal proceeding when the conviction is vacated on an actual-innocence finding,” he said. “Or, if the conviction is vacated on other grounds, formerly convicted individuals may prove their innocence in their malpractice suit against their criminal-defense attorneys.”
The court also said the limitations period was tolled during Skelton’s direct appeal and post-conviction proceedings. This included several years after her habeas relief while she was awaiting the state’s decision on whether to retry the charge, the court said.
“To clarify, we consider the tolling period to include not only the habeas application process but also the period during which Skelton’s case was pending for a new trial, awaiting the State’s prosecution,” said Devine.
Devine was joined by Chief Justice Nathan Hecht and Justices Eva Guzman, Debra Lehrmann, Jeff Boyd and Brett Busby.
Justice Jimmy Blacklock wrote a dissent, which was joined by Justices Paul Green and Jane Bland. Blacklock said he would not toll limitations during post-conviction habeas proceedings. He added that even under the tolling rule announced by the majority, the nine years between Skelton’s conviction and filing her malpractice suit was too long.
Blacklock said that Skelton’s conviction was a “raw deal” and wondered whether that influenced the majority’s decision.
“But the rule will not just apply in cases like Skelton’s. It will toll limitations in all potential malpractice cases for as long as habeas corpus petitions remain pending, which is often a period of many years or even decades,” said Blacklock.
Skelton was represented by Leslie Hyman of San Antonio’s Pulman, Cappuccio & Pullen. Gray was represented by Jane Webre of Austin’s Scott Douglass & McConnico.
The impact of the court’s ruling on the exposure of criminal defense lawyers to malpractice lawsuits is significant, says Ken Carroll, who heads the appellate practice group at Carrington, Coleman, Sloman & Blumenthal. But by requiring proof of actual innocence, the court maintains a barrier to an open floodgate of filings.
He said malpractice litigants could see mini-trials of the underlying criminal case where the former criminal defendant must prove their innocence by a preponderance of the evidence in comparison to the state’s burden of beyond a reasonable doubt.
Carroll said the tolling rule will result in long periods of uncertainty for criminal defense attorneys who clients are raising one or more habeas challenges.
Read the court’s opinion in Bethel v. Quilling here. Read the court’s majority opinion in Gray v. Skelton here and dissent here.