Troice v. Greenberg Traurig, L.L.P.
921 F.3d 501
5th Cir.2019Background
- Suit arose from alleged involvement of a Greenberg Traurig attorney in the R. Allen Stanford Ponzi scheme; plaintiffs (receiver, Official Stanford Investors Committee, and three investors) alleged Greenberg aided and abetted the fraud under respondeat superior.
- Plaintiffs also sought class certification; district court granted judgment on the pleadings for Greenberg and denied class certification as moot.
- Central legal question: whether Texas attorney-immunity doctrine bars suits by non-clients for conduct within the scope of representation, and whether three asserted exceptions apply.
- Plaintiffs urged three exceptions to immunity: (1) acts outside litigation (non-litigation exception), (2) criminal conduct, and (3) violations of the Texas Securities Act (TSA) that abrogate the common-law immunity.
- Fifth Circuit reviewed judgment on the pleadings de novo, projected Texas Supreme Court law where necessary, and declined to certify questions to the Texas Supreme Court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of attorney immunity — non-litigation conduct | Immunity limited to litigation; non-litigation conduct not covered | Immunity protects conduct within scope of representation, including non-litigation matters | Court: immunity applies in non-litigation context; Texas Supreme Court likely would so hold |
| Criminal conduct | Criminal acts should categorically remove immunity | Whether conduct was criminal is not controlling; focus is whether act was within scope of representation | Court: criminality does not automatically negate immunity; inquiry remains whether act was within scope of representation |
| TSA abrogation of immunity | TSA abrogates common-law attorney immunity for securities violations | No express or necessarily implied legislative abrogation; immunity remains unless clearly abrogated | Court: not convinced TSA clearly abrogates attorney immunity; immunity survives TSA claims |
| Certification to Texas Supreme Court | Issues unsettled; request certification | Sufficient state precedent and guidance from courts of appeals; certification unnecessary | Court: denied certification; sufficient guidance to decide issues |
Key Cases Cited
- Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477 (Tex. 2015) (announcing broad attorney-immunity rule to non-clients and focusing inquiry on whether conduct was within scope of representation)
- Youngkin v. Hines, 546 S.W.3d 675 (Tex. 2018) (describing limits of immunity and illustrating that "kind" not "nature" of conduct controls; example of assault outside scope)
- Janvey v. Democratic Senatorial Campaign Comm., Inc., 712 F.3d 185 (5th Cir. 2013) (background on the Stanford Ponzi scheme that spawned related litigation)
- Kelly v. Nichamoff, 868 F.3d 371 (5th Cir. 2017) (discussing scope and application of Texas attorney-immunity doctrine)
- Compass Bank v. King, Griffin & Adamson P.C., 388 F.3d 504 (5th Cir. 2004) (supporting projection of Texas Supreme Court law based on lower-court decisions)
- Flowers v. Dempsey-Tegeler & Co., 472 S.W.2d 112 (Tex. 1971) (interpreting TSA provision broadly)
- Dugger v. Arredondo, 408 S.W.3d 825 (Tex. 2013) (noting that common-law defenses may be abrogated by statute only expressly or by necessary implication)
- Forest Oil Corp. v. El Rucio Land & Cattle Co., 518 S.W.3d 422 (Tex. 2017) (statutory abrogation of common law must be by clear expression or necessary implication)