In two opinions filed Friday, the Supreme Court of Texas both expanded and explained the closely tethered protections of judicial-proceedings privilege and attorney immunity — better defining when they protect lawyers from non-client lawsuits and when they do not.
The rulings, both unanimous, involve the conduct of lawyers: one concerning white tigers caged at the Houston Aquarium, the other involving haute-fashion footwear once worn by the likes of Halle Berry — a case of particular interest to transactional lawyers.
In the footwear case, Haynes and Boone LLP and Arthur L. Howard v. NFTD et al, the court ruled that attorney immunity extends to lawyerly work done by lawyers for clients, even if that work is done outside the context of litigation.
The case involves the complicated sale of a footwear business that specialized in highly sought-after sandals. At question is an allegation of fraud: that a lawyer from Haynes and Boone, who had represented the sellers, failed to disclose to the ultimate buyers that some of the designs they were paying for had never been properly protected by patents.
In the past the Supreme Court had described the kind of legal services protected by lawyer immunity from non-client lawsuits but had not specifically expanded its application outside the courtroom. In Haynes and Boone, Justice Jeffrey Boyd sought to correct that.
Prior rulings had protected attorney services that require the “unique office, professional skill, training, and authority of an attorney” that are conducted within an “adversarial context in which the client and the non-client do not share the same interests.”
“Today we confirm that attorney immunity applies to claims based on conduct outside the litigation context, so long as the conduct is the ‘kind’ of conduct we have described above.”
Boyd continued to a sound of what should be music to the ears of transactional lawyers: that their work is every bit as worthy of protection as that of litigators.
“We reach this conclusion because we see no meaningful distinction between the litigation context and the non-litigation context when it comes to the reasons we have recognized attorney immunity in the first place. We have recognized attorney immunity because attorneys are duty-bound to competently, diligently, and zealously represent their clients’ interests while avoiding any conflicting obligations or duties to themselves or others.”
Monday’s ruling did not settle the issue for either Haynes and Boone or Arthur Howard, their former attorney. While the court embraced and defined the broader immunity sought by the firm, the court did not decide whether Howard’s conduct in the transaction fell within that protection.
The case was remanded back to the Fourteenth Court of Appeals for them to decide, based on the court’s other decision filed Friday — that of the white tiger case, Landry Inc. and Houston Aquarium Inc. v. Animal Legal Defense Fund et al.
In an opinion written by Justice Jimmy Blacklock, the Supreme Court ruled that the court of appeals, once again the Fourteenth, erred when it ruled that a group of animal rights lawyers in Houston, accused of defamation by a local business, were shielded from liability by both the judicial-proceedings privilege and by attorney immunity.
In September 2016, the Houston Aquarium, owned by Landry’s Inc., was housing four white Bengal tigers when they were served with a 60-day notice of an intent to sue by the Animal Legal Defense Fund. The notice letter claimed that the caging of the tigers was a violation of the Endangered Species Act and that the suit was being brought under the ESA’s citizen-suit provision.
Copies of the letter were sent to Landry’s and the Department of Interior, as provided by the law; but copies of the letter — along with an ALDF press release — were also sent to several media outlets and published on the organization’s website. And nearly two months later, Landry’s sued the ALDF for defamation, business disparagement, tortious interference, trespass, abuse of process and civil conspiracy.
The ALDF successfully pursued a SLAPP-motion defense; Landry’s was hit with a total of $450,000 in SLAPP sanctions and attorneys’ fees to the benefit of ALDF and an individual defendant — the largest SLAPP sanction in Texas court history.
The appeals court affirmed the dismissal of several claims by Landry’s on their lack of merit, but held that the ALDF attorneys were immune from liability for the allegedly defamatory statements — even though some were mere opinion — because they bear “some relation to an existing or proposed judicial proceeding” and were made in good faith.
On further appeal, Landry’s asked the Supreme Court to review the issues of judicial-proceedings privilege and attorney immunity; the dismissal of its charge of business-disparagement and tortious inference claims, and the SLAPP sanctions award.
In the opinion Blacklock noted that Texas law has been “less than clear” on whether defamatory allegations raised by a lawsuit should be protected by the judicial-proceedings privilege outside the courtroom. Blacklock, however, was very clear: Texas will not extend the judicial-proceedings privilege to press releases and the press conferences of flap-jawed lawyers.
“The judicial-proceedings privilege…does not exist to promote publicity or public awareness outside the courtroom. Its purpose is to facilitate open and vigorous litigation of matters inside the courtroom,” Blacklock wrote.
Thus, the delivery of the notice letter to Landry’s and to the Department of the Interior was covered by the privilege, but its use as an attachment to the press release was not.
“The statement itself must bear ‘some relation to a proceeding. It is not enough that the statement’s subject matter bears such a relation,” Blacklock wrote.
Likewise, the ALDF press release was not the product of “lawyerly work” that would provide attorney immunity. Though the statements are afforded other protections, including the First Amendment, they are not protected simply because they are made by an attorney.
“Some conduct by attorneys remains actionable, even if done on behalf of a client,” Justice Blacklock wrote, remanding the case back to the appeals court to determine whether — in the absence of judicial-proceedings privilege or attorney immunity — Landry’s still had a case.
The cases are:
Haynes and Boone and Arthur Howard v. NFTD, et al. 20-0066.
The attorneys:
For Haynes and Boone and Arthur Howard: Russell Post of Beck Redden
For NFTD, et al.: Kenneth Breitbeil of Frost Brown Todd
and
Landry’s Inc. and Houston Aquarium Inc. v. Animal Legal Defense Fund et al. 19-0036.
The attorneys:
For Landry’s, et al: Aaron Streett of Baker Botts
For Animal Legal Defense Fund, et al: Ryan Clinton of Davis Gerald & Cremer
For amicus curiae: Rodney Smolla, Widener University School of Law