The plaintiff’s husband died in a car accident while towing a trailer. She sued the trailer’s manufacturer alleging that its faulty brakes caused the accident. The Quilling law firm represented the manufacturer. The plaintiff sued Quilling for fraud, trespass, and conversion, alleging that the firm intentionally destroyed key evidence by disassembling and testing the trailer’s brakes before the plaintiff had the opportunity to either examine them or document their condition.
Under Texas law, attorneys are generally immune from civil liability to non-clients for actions taken in connection in the representation of a client in litigation. The immunity inquiry focuses on the kind of conduct at issue, rather than the alleged wrongfulness of said conduct.
The Texas Supreme Court, in this case, declines to create an exception where criminal conduct on the part of the attorney is alleged. “A plaintiff could avoid the attorney-immunity doctrine by merely alleging that an attorney’s conduct was ‘criminal’. This would significantly undercut the protections of attorney immunity.”
At the same time, the Court noted that “attorney immunity is not boundless. An attorney is not immune from suit for participating in criminal or independently fraudulent activities that fall outside the scope of the attorney’s representation of a client. For example, immunity does not apply when an attorney participates in a fraudulent business scheme with her client or knowingly facilitates a fraudulent transfer to help her clients avoid paying a judgment. Immunity also does not apply when an attorney’s actions do not involve the provision of legal services – for example, when an attorney assaults opposing counsel. Certainly, there is a wide range of criminal conduct that is not within the scope of client representation and therefore foreign to the duties of an attorney. Thus, while we decline to recognize a per se criminal-conduct exception, an attorney’s allegedly criminal conduct may fall outside the scope of attorney immunity. We also note that nothing in our attorney-immunity jurisprudence affects an attorney’s potential criminal liability if the conduct constitutes a criminal offense. And other remedies – such as sanctions, spoliation instructions, contempt, and disciplinary proceedings – may be available even if immunity shields an attorney’s wrongful conduct.
“With these principles in mind, and taking Bethel’s factual allegations as true, we conclude that Quilling’s complained-of actions are the kind of actions that are taken in connection with representing a client in litigation. Bethel’s petition alleges that Quilling destroyed evidence in the underlying suit by: (1) disassembling the trailer’s brakes; (2) failing to establish any testing/inspection protocol at the time of the disassembly; (3) failing to document the disassembly on video; (4) changing the position of the brakes’ adjuster screws to facilitate the disassembly; (5) actuating some of the brakes to test them; and (6) spilling oil on the brakes during disassembly. Thus, at bottom, Bethel takes issue with the manner in which Quilling examined and tested evidence during discovery in civil litigation while representing Bethel’s opposing party. These are paradigmatic functions of an attorney representing a client in litigation.
“Bethel nevertheless contends that Quilling’s conduct – criminal destruction of personal property – is not the type of conduct that is part of client representation. This certainly could be true in some circumstances. For instance, if an attorney destroyed a non-client’s property that was unrelated to litigation, then that conduct likely would not involve the provision of legal services, and the attorney would not be entitled to immunity. Immunity also may not protect the intentional destruction of evidence – for instance, if Quilling had simply taken a sledgehammer to the brakes. Such actions do not involve the provision of legal services and therefore cannot fall within the scope of client representation. Here, however, Quilling acted in conjunction with its experts to examine and test key evidence in the underlying suit. It may well be, as Bethel alleges, that Quilling’s actions resulted in the destruction of evidence. But again, for civil-immunity purposes, our analysis looks to the type of conduct, not whether that conduct was wrongful. 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.”
Bethel v. Quilling Selander Lownds Winslett & Moser, 595 S.W.3d 651 (Tex. 2020).