Cantey Hanger, Llp v. Philip Gregory Byrd, Lucy Leasing Co., L.L.C., and Pgb Air, Inc., 467 S.W.3d 477

Background

Byrd and Simenstad divorced by an agreed decree awarding three airplanes to Simenstad and Lucy Leasing Co., LLC to Byrd; decree required attorneys to prepare documents to effectuate transfers within ten days.
Over a year later, plaintiffs (Byrd, Lucy Leasing, PGB Air) alleged Simenstad and her counsel, Cantey Hanger, falsified a bill of sale transferring a Piper Seminole from Lucy Leasing to a third party, signed by "Nancy Byrd" as a manager, shifting tax liability to Lucy Leasing/Byrd.
Plaintiffs sued Cantey Hanger for fraud, aiding-and-abetting, and conspiracy; Cantey Hanger asserted attorney-immunity as an affirmative defense and moved for traditional summary judgment on that ground.
Trial court granted summary judgment for Cantey Hanger; the court of appeals reversed as to the fraud-related claims, holding the alleged misconduct was outside the scope of representation and immunity not established.
The Texas Supreme Court granted review and held Cantey Hanger conclusively proved its attorney-immunity defense because the alleged conduct related to duties assigned by the divorce decree and was the type of conduct an attorney performs in representing a client; summary judgment reinstated.

Issues

Issue	Plaintiff's Argument (Byrd)	Defendant's Argument (Cantey Hanger)	Held
Whether attorneys are immune from civil liability to non-clients for acts connected to client representation	Byrd: Alleged falsification and tax-shifting were wrongful, outside scope of representation, so immunity inapplicable	Cantey Hanger: Actions were taken in course/scope of representing Simenstad to effectuate the transfer required by the decree, so immunity bars claims	Held: Attorney immunity applies to actions within scope of representation; Cantey Hanger proved immunity as a matter of law
Whether alleged fraudulent conduct automatically defeats immunity ("fraud exception")	Byrd: Fraud vitiates immunity; knowingly false acts are unprotected	Cantey Hanger: There is no categorical fraud exception; defendant must show conduct was within representation even if wrongful	Held: No broad fraud exception; immunity does not cover wrongful acts only when those acts are foreign to attorney duties
Whether the conduct occurred in litigation or was post-judgment, non-litigation conduct outside immunity	Byrd: The sale occurred >1 year post-judgment and to a third party; thus it was unrelated to the divorce proceeding	Cantey Hanger: Preparing transfer documents to effectuate the decree (even postjudgment) falls within attorney duties tied to the divorce representation	Held: The Court treated the alleged conduct as within the scope of representation in the divorce matter and therefore protected by immunity; issues about exact timing/evidence of fraud not decisive for immunity burden

Key Cases Cited

Kruegel v. Murphy, 126 S.W. 343 (Tex.Civ.App. 1910) (early broad statement of attorney immunity for advocacy in litigation)
Poole v. Houston & T.C. Ry. Co., 58 Tex. 134 (Tex. 1882) (attorney liable where conduct was part of a fraudulent business scheme "foreign to the duties of an attorney")
Chu v. Hong, 249 S.W.3d 441 (Tex. 2008) (attorney may be liable for conversion or fraud in some cases)
McCamish, Martin, Brown & Loeffler v. F.E. Appling Interests, 991 S.W.2d 787 (Tex. 1999) (privity limits malpractice liability; negligent misrepresentation exception articulated)
Alpert v. Crain, Caton & James, P.C., 178 S.W.3d 398 (Tex.App.-Houston [1st Dist.] 2005) (attorney immunity protects actions taken in connection with representing a client in litigation)
Renfroe v. Jones & Assocs., 947 S.W.2d 285 (Tex.App.-Fort Worth 1997) (scope-of-conduct focus for immunity)
Toles v. Toles, 113 S.W.3d 899 (Tex.App.-Dallas 2003) (wrongful conduct may still be protected if part of attorney's duties)
Barcelo v. Elliott, 923 S.W.2d 575 (Tex. 1996) (no professional duty of care to third parties for negligent representation)