Taylor v. Tolbert

• Decision Date: 06 May 2022
• Docket Number: 20-0727
• Citation: 644 S.W.3d 637
• Parties: Terisa TAYLOR, Petitioner, v. Carl TOLBERT, Nizzera Kimball and Vivian Robbins, Respondents
• Court: Texas Supreme Court

644 S.W.3d 637

Terisa TAYLOR, Petitioner,

v.Carl TOLBERT, Nizzera Kimball and Vivian Robbins, Respondents

No. 20-0727

Supreme Court of Texas.

Argued February 1, 2022

OPINION DELIVERED: May 6, 2022

Greg B. Enos, for Respondents.

Vivian Robbins, Pro Se.

Alan B. Daughtry, Houston, for Petitioner Terisa Taylor.

John Hays, Marlene C. Williams, Houston, for Petitioner Pathway Forensics, LLC.

Richard Gardner Wilson, Pro Se.

Justice Devine delivered the opinion of the Court.

Under Texas law, attorneys are generally immune from civil liability to nonclients for actions taken within the scope of legal representation if those actions involve "the kind of conduct" attorneys engage in when discharging their professional duties to a client.¹ In recent years, we have had several occasions to consider the scope of this common-law immunity defense. When presented with the question, we have held that the immunity inquiry focuses on the function and role the lawyer was performing, not the alleged wrongfulness, or even asserted criminality, of the lawyer's conduct.² The nuance presented here is whether an exception exists for private-party civil suits asserting that a lawyer has engaged in conduct criminalized by statute.

We hold that, when conduct is prohibited by statute, the attorney-immunity defense is neither categorically inapplicable nor automatically available, even if the defense might otherwise cover the conduct at issue. In such cases, whether an attorney may claim the privilege depends on the particular statute in question. That being so, the attorney in this case is only entitled to partial immunity on civil claims alleging she violated state and federal wiretap statutes by "using" and "disclosing" electronic communications illegally "intercepted" by her client and others. Immunity attaches to the state claims because the Texas wiretap statute does not expressly, or by necessary implication, abrogate the immunity defense, and the attorney met her burden to establish its applicability to the conduct at issue. But immunity does not attach to the federal claims because the federal wiretap statute is worded differently, and informative federal authority (sparse as it is) persuades us that federal courts would not apply Texas's common-law attorney-immunity defense to a claim under that statute. We thus affirm the court of appeals’ judgment that the attorney-immunity defense is inapplicable to the federal wiretap claims but reverse and render judgment for the attorney on the state wiretap claims.

I. Background

The underlying dispute originates from a child-custody modification proceeding between Mark Broome and Vivian Robbins regarding their child, N.B. Attorney Terisa Taylor represented Broome in the highly acrimonious family-law case.

In the midst of the modification proceeding,³ N.B. visited her aunt, Fiona McInally, in the summer of 2013. At some point, an iPad belonging to McInally began receiving text messages and emails between Robbins and at least thirty other individuals, all of whom were unaware this was happening and none of whom consented. How this happened remains something of a mystery, but there appears to be no dispute that N.B. had signed into her aunt's iPad using Robbins's email address and password to download an app. After discovering the text messages, McInally or her husband (Broome's brother) mailed the iPad to Broome, who obtained Robbins's text messages and emails from the iPad and shared them with Taylor for use in the modification proceeding.

Robbins and several of her interlocutors, including Carl Tolbert and Nizzera Kimball,⁴ sued Taylor and others for violating the federal and Texas wiretap statutes.⁵ Wiretapping is a criminal offense under federal and state law,⁶ but both statutory schemes permit private parties to pursue civil redress for violations of the penal statutes.⁷ The federal statute provides a civil cause of action for "any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter[.]"⁸ Texas likewise grants a private right of action for "[a] person whose wire, oral, or electronic communication is intercepted, disclosed, or used in violation of" certain statutes, including Chapter 16 of the Penal Code and Chapter 18A of the Code of Criminal Procedure.⁹ Robbins, Tolbert, and Kimball (collectively, Robbins) alleged that Taylor had improperly "used" and "disclosed" illegally "intercepted" electronic communications in the following particulars:

• received the text messages and emails her client, Broome, shared with her;

• produced a CD containing data from the iPad to Robbins's attorney;

• told opposing counsel that "she and her client were in possession of everything Ms. Robbins had communicated to others, including a nude photograph that Ms. Robbins had sent via text message to her boyfriend";

• told opposing counsel that she intended to use the nude photograph as a poster-size demonstrative in the jury trial; • told opposing counsel to advise Robbins to "sign an agreed order resolving the custody case and agreeing to supervised visitation only or this evidence would be used against her";

• "filed an unusual pleading entitled ‘Notice of Intent to Use Demonstrative Evidence’[,] which said that Mark Broome intended to use ... [a] ‘Power Point presentation and large photo board’ " at trial;

• for at least six months, "used information gleaned from the illegally intercepted communications in several family court hearings and to conduct discovery in the child custody modification case ... prior to Ms. Robbins becoming aware of the interception," which she learned about when Taylor produced 617 pages of Robbins's text messages to her attorney and when Broome filed a pleading referencing the content of Robbins's email messages;

• "[repeatedly] used and disclosed the contents of those intercepted electronic communications to the court and in [ ] pleadings in the modification case";

• "provided Fiona McInaly's [sic] iPad to Pathway Forensics, LLC for examination";¹⁰ and

• used the illegally intercepted communications on McInally's iPad to obtain a court order authorizing Pathway Forensics to make a copy of Robbins's electronic devices.¹¹

Notably, the petition does not allege any facts suggesting that Taylor played a role in the alleged "interception" of Robbins's electronic communications or that she advised Broome or others to take these actions. Rather, the factual allegations against Taylor are limited to her "use" and "disclosure" of those communications in the modification proceeding.

Taylor moved for traditional summary judgment solely on the pleadings, arguing she is immune from liability as a matter of law because the plaintiffs’ claims all stem from her role as an attorney in the modification proceeding.¹² The trial court agreed and rendered a take-nothing summary judgment for Taylor.

In a split decision, the court of appeals reversed and remanded.¹³ After noting that our attorney-immunity decisions in Cantey Hanger, LLP v. Byrd¹⁴ and Youngkin v. Hines¹⁵ neither "involved alleged criminal conduct by an attorney" nor extended attorney immunity to criminal conduct, the majority summarily determined that "[a] criminal violation of either [the federal or state wiretap] statute would be ‘foreign to the duties of an attorney’ and thus precludes application of attorney[ ]immunity."¹⁶

Examining our attorney-immunity precedent in more detail, the dissent found the majority's holding to be directly adverse to Bethel v. Quilling, Selander, Lownds, Winslett & Moser, P.C. ,¹⁷ in which we rejected the invitation to create a "criminal conduct" exception to the attorney-immunity defense and applied the defense to litigation conduct alleged to be criminal in nature.¹⁸ The dissent then cited two independent reasons to affirm summary judgment for Taylor. First, the dissent declared Robbins's petition fatally deficient in failing to plead facts showing Taylor had engaged in conduct violating the wiretap statutes.¹⁹ As to that matter, the dissent noted the absence of factual allegations showing (1) "contemporaneous acquisition of the communication when it was sent," as required to establish an "interception," and (2) that Taylor knew, should have known, or was reckless in disregarding that the communications had been "intercepted," as required to make "use" or "disclosure" of "intercepted" communications impermissible.²⁰ Second, even if Robbins had pleaded sufficient facts to state a claim under the wiretap statutes, Taylor's alleged conduct fell directly within the scope of her representation of Broome in the modification proceeding and was not "foreign to the duties of an attorney."²¹ Applying Bethel , which the majority failed to discuss or cite, the dissent concluded that, as a matter of law, attorney immunity protects Taylor from civil liability because the conduct about which Robbins complains involved Taylor's rendition of legal services to a client in the course of litigation.²²

We granted Taylor's petition for review to further refine the boundaries of the attorney-immunity defense. The principal matter in dispute is whether the immunity defense applies to alleged conduct that, if proven, is criminalized by statute.

II. Discussion

As the summary-judgment movant on an affirmative defense, Taylor bears the burden of conclusively establishing that attorney immunity bars the plaintiffs’ recovery on the claims asserted.²³ "The only facts required to support an attorney-immunity defense are the type of conduct at issue and the existence of an attorney–client relationship at the time" the attorney engaged in the conduct.²⁴ We must then decide "the legal question of whether said conduct was within the scope of representation."²⁵ Because Taylor moved for summary judgment on the pleadings, we must take the allegations in Robbins's petition as true, and we will uphold summary judgment for Taylor only if she is entitled to judgment as a matter of law.²⁶

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