CANTEY HANGER, LLP, Petitioner, v. Philip Gregory BYRD, Lucy Leasing Co., L.L.C., and PGB Air, Inc., Respondents
No. 13-0861
Supreme Court of Texas.
OPINION DELIVERED: June 26, 2015
Rehearing Denied September 11, 2015
467 S.W.3d 477
Lindsey Rames, Dallas, for Respondents.
This case concerns the scope of attorneys’ immunity from civil liability to non-clients. Following the trial court‘s entry of a divorce decree, one of the divorce litigants sued opposing counsel for fraud and related claims in connection with the law firm‘s alleged preparation of a document to effectuate the transfer of personal property awarded to its client in the decree. Specifically, the litigant alleged that the document contained misrepresentations and that the firm structured the property‘s transfer in a manner that shifted certain tax liabilities to the litigant in contravention of the decree. The law firm moved for summary judgment, arguing that it was immune from liability to a non-client for conduct within the scope of representation of its client in the divorce proceedings. The trial court granted the motion, but the court of appeals reversed, holding that the firm‘s alleged conduct was unrelated to the divorce litigation and that the firm had not conclusively established its entitlement to immunity. We hold that the firm established its affirmative defense of attorney immunity as a matter of law and therefore reverse the court of appeals’ judgment.
I. Background
Philip Byrd and Nancy Simenstad commenced divorce proceedings in 2006. Simenstad was represented in the divorce proceedings by Vick, Carney & Smith, LLP, and then by Cantey Hanger, LLP. The divorce proceedings were highly contentious, but in August 2008 the parties settled, resulting in the trial court‘s entry of an agreed divorce decree.
The decree awarded Simenstad three aircraft as her separate property, including a Piper Seminole that had been owned by Lucy Leasing Co., LLC, a company the decree awarded to Byrd. The decree also made Simenstad responsible for all ad valorem taxes, liens, and assessments on the aircraft. Finally, the decree ordered the parties to “execute with[in] ten days from the entry of this decree any documents necessary to effectuate the transfers contemplated herein, which shall include ... documents necessary to transfer ownership of airplanes and the like.” The “attorney for the non-signing party” was ordered to “draft the documents necessary to effectuate the transfers contemplated [in the decree].” The record does not reflect, and no party asserts, that any transfer documents regarding the Piper Seminole at issue were executed within the time frame specified in the decree.
Byrd, Lucy Leasing, and PGB Air, Inc. (another company awarded to Byrd in the decree) sued Simenstad and Cantey Hanger,1 alleging in pertinent part that, over a year after the decree was entered, Simenstad and Cantey Hanger falsified a bill of sale transferring the Piper Seminole from Lucy Leasing to a third party. Specifically, the plaintiffs alleged that Simenstad executed the bill of sale as “Nancy Byrd,” a “manager” of Lucy Leasing, even though her last name had previously been legally changed to Simenstad and she “was never an owner, officer, or manager” of Lucy Leasing. They brought claims against Cantey Hanger for fraud, aiding and abet-
Cantey Hanger moved for summary judgment3 on attorney-immunity grounds, arguing that it owed no duty to Byrd or the other plaintiffs and that as a matter of law it was not liable to the plaintiffs for actions taken in the course and scope of its representation of Simenstad in the divorce proceeding. Exhibits to Cantey Hanger‘s motion included the decree and affidavits from two Cantey Hanger attorneys attesting that Cantey Hanger was retained to represent Simenstad in the divorce proceedings and that “[a]ll actions taken by Cantey Hanger with respect to Plaintiffs were made in the course and scope of representing Ms. Simenstad.”4
The plaintiffs responded that Cantey Hanger‘s conduct—“[c]onspiring with and aiding a client to falsify documents [and] evade tax liability“—was “wrongful,” was not “part of the discharge of [Cantey Hanger‘s] duties in representing [its] client,” and thus was not protected by attorney immunity. They argued more broadly that the claims against Cantey Hanger “should be permitted because they involve fraudulent conduct.” In an affidavit submitted as an exhibit to the response, Byrd testified that he had never received documents from Cantey Hanger to sign in order to effectuate the transfer of the Piper Seminole from Lucy Leasing to Simenstad, that he discovered the plane had been transferred directly to a third party, that Simenstad had signed the bill of sale as manager of Lucy Leasing even though he was the sole manager, that the plane was still registered to Lucy Leasing, and that the transaction made Lucy Leasing responsible for the sales tax.5
The trial court granted Cantey Hanger‘s summary-judgment motion and dismissed all claims against it with prejudice. The court of appeals reversed as to the fraud, aiding-and-abetting, and conspiracy claims relating to the sale of the plane. 409 S.W.3d at 782-83. The court held that, although attorneys enjoy qualified immunity from civil liability to non-clients for actions taken in connection with representing a client in litigation, Cantey Hanger was not entitled to such immunity. Id. at 779-81. The court concluded that Cantey Hanger‘s allegedly fraudulent conduct involving the “subsequent sale” of the plane awarded to Simenstad “was not required by, and had nothing to do with, the divorce decree,” and thus was “outside the scope
II. Standard of Review
We review a grant of summary judgment de novo. State v. Ninety Thousand Two Hundred Thirty-Five Dollars & No Cents in U.S. Currency ($90,235), 390 S.W.3d 289, 292 (Tex. 2013). A party moving for traditional summary judgment has the burden to prove that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.
III. Attorney Immunity
Texas common law is well settled that an attorney does not owe a professional duty of care to third parties who are damaged by the attorney‘s negligent representation of a client. Barcelo v. Elliott, 923 S.W.2d 575, 577 (Tex. 1996); see also McCamish, Martin, Brown & Loeffler v. F.E. Appling Interests, 991 S.W.2d 787, 792 (Tex. 1999) (explaining that a lack of privity precludes attorneys’ liability to non-clients for legal malpractice). However, Texas courts have developed a more comprehensive affirmative defense protecting attorneys from liability to non-clients, stemming from the broad declaration over a century ago that “attorneys are authorized to practice their profession, to advise their clients and interpose any defense or supposed defense, without making themselves liable for damages.” Kruegel v. Murphy, 126 S.W. 343, 345 (Tex. Civ. App. 1910, writ ref‘d). This attorney-immunity defense is intended to ensure “loyal, faithful, and aggressive representation by attorneys employed as advocates.” Mitchell v. Chapman, 10 S.W.3d 810, 812 (Tex. App.-Dallas 2000, pet. denied).
In accordance with this purpose, there is consensus among the courts of appeals that, as a general rule, attorneys are immune from civil liability to non-clients “for actions taken in connection with representing a client in litigation.” Alpert v. Crain, Caton & James, P.C., 178 S.W.3d 398, 405 (Tex. App.-Houston [1st Dist.] 2005, pet. denied); see also Toles v. Toles, 113 S.W.3d 899, 910 (Tex. App.-Dallas 2003, no pet.); Renfroe v. Jones & Assocs., 947 S.W.2d 285, 287-88 (Tex. App.-Fort Worth 1997, pet. denied). Even conduct that is “wrongful in the context of the underlying suit” is not actionable if it is “part of the discharge of the lawyer‘s duties in representing his or her client.” Toles, 113 S.W.3d at 910-11; Alpert, 178 S.W.3d at 406; see also Dixon Fin. Servs., Ltd. v. Greenberg, Peden, Siegmyer &
Conversely, attorneys are not protected from liability to non-clients for their actions when they do not qualify as “the kind of conduct in which an attorney engages when discharging his duties to his client.” Dixon Fin. Servs., 2008 WL 746548, at *9; see also Chapman Children‘s Trust v. Porter & Hedges, L.L.P., 32 S.W.3d 429, 442 (Tex. App.-Houston [14th Dist.] 2000, pet. denied) (noting that “it is the kind of conduct that is controlling, and not whether that conduct is meritorious or sanctionable“). For example, we have held that an attorney “will not be heard to deny his liability” for the damages caused by his participation in a fraudulent business scheme with his client, as “such acts are entirely foreign to the duties of an attorney.” Poole v. Hous. & T.C. Ry. Co., 58 Tex. 134, 137 (1882); see also Essex Crane Rental Corp. v. Carter, 371 S.W.3d 366, 382 (Tex. App.-Houston [1st Dist.] 2012, pet. denied) (holding that attorneys were not immune from claims that they knowingly assisted their clients in evading a judgment through a fraudulent transfer). And the courts of appeals have identified examples of attorney conduct that, even if it occurred during a lawsuit, would be actionable because it does not involve the provision of legal services and would thus fall outside the scope of client representation. See, e.g., Bradt v. West, 892 S.W.2d 56, 72 (Tex. App.-Houston [1st Dist.] 1994, writ denied) (noting that a claim against an attorney for assaulting opposing counsel during trial would be actionable, as such conduct “is not part of the discharge of an attorney‘s duties in representing a party“).
In this case, the parties dispute whether Cantey Hanger has conclusively proven that its alleged conduct with respect to the sale of the plane was part of the discharge of its duties in representing Simenstad in
We think the latter view is consistent with the nature and purpose of the attorney-immunity defense. An attorney is given latitude to “pursue legal rights that he deems necessary and proper” precisely to avoid the inevitable conflict that would arise if he were “forced constantly to balance his own potential exposure against his client‘s best interest.” Alpert, 178 S.W.3d at 405 (citing Bradt, 892 S.W.2d at 71-72). Because the focus in evaluating attorney liability to a non-client is “on the kind—not the nature—of the attorney‘s conduct,” a general fraud exception would significantly undercut the defense.8 Dixon Fin. Servs., 2008 WL 746548, at *8. Merely labeling an attorney‘s conduct “fraudulent” does not and should not remove it from the scope of client representation or render it “foreign to the duties of an attorney.” Alpert, 178 S.W.3d at 406 (citing Poole, 58 Tex. at 137); see also Dixon Fin. Servs., 2008 WL 746548, at *9 (“Characterizing an attorney‘s action in advancing his client‘s rights as fraudulent does not change the rule that an attorney cannot be held liable for discharging his duties to his client.“).
Moreover, characterizing fraudulent conduct as an “exception” to the attorney-immunity defense brings unnecessary confusion and complexity to the analysis. In this case, for example, the
IV. Application
Cantey Hanger is entitled to summary judgment on its immunity defense if it conclusively established that its alleged conduct was within the scope of its legal representation of Simenstad in the divorce proceedings. We hold that it did. The relevant allegations in Byrd‘s petition may be summarized as follows: (1) the divorce decree awarded Simenstad the aircraft at issue and assigned responsibility for the plane‘s ad valorem taxes, liens, and assessments to Simenstad; (2) the decree directed Simenstad‘s attorneys to prepare necessary documents to effectuate the plane‘s transfer from Lucy Leasing to Simenstad; (3) Cantey Hanger assisted Simenstad in executing a bill of sale of the plane from Lucy Leasing directly to a third party;10 (4) the bill of sale was signed by “Nancy Byrd,” a “manager” of Lucy Leasing; (5) Simenstad‘s name had been legally changed from Byrd back to Simenstad before she signed the document, and she had no authority to act on Lucy Leasing‘s behalf; and (6) by transferring the plane directly to a third party, the bill of sale shifted liability for the taxes on the plane to Lucy Leasing (and thus to Byrd) in contravention of the decree.
Indeed, the court of appeals stated, and we agree, that “Cantey Hanger‘s preparation of a bill of sale to facilitate transfer of an airplane awarded to its client in an agreed divorce decree was conduct in which an attorney engages to discharge his duties to his client” and was not “foreign to the duties of an attorney.” 409 S.W.3d at 780. Yet the court went on to hold that the complained-of conduct—intentional misrepresentations in the bill of sale made for the purpose of shifting tax liability from Simenstad to Lucy Leasing and Byrd—was outside the scope of Cantey Hanger‘s duties to its client. This simply does not follow. The type of conduct described in these two statements is the same; the only difference is the added detail in the latter description that makes the conduct “wrongful.” Again, an attorney‘s conduct may be wrongful but still fall within the scope of client representation. E.g., Renfroe, 947 S.W.2d at 287-88 (holding that attorneys were not liable to opposing parties for filing a wrongful garnishment action). We hold that Cantey Hanger has conclusively established that its alleged conduct was within the scope of its representation of Simenstad in the divorce proceedings, was not foreign to the duties of an attorney, and is thus protected by attorney immunity.12
We note that the court of appeals remanded the plaintiffs’ fraud claims against Simenstad to the trial court. To the extent Lucy Leasing is determined to be
V. Conclusion
Cantey Hanger has conclusively established that it is immune from civil liability to the plaintiffs and that the trial court‘s grant of summary judgment was proper. Accordingly, we reverse that portion of the court of appeals’ judgment relating to the fraud, aiding-and-abetting, and conspiracy claims against Cantey Hanger and reinstate the trial court‘s judgment.
Justice Green filed a dissenting opinion, in which Chief Justice Hecht, Justice Johnson, and Justice Willett joined.
Justice Green joined by Chief Justice Hecht, Justice Johnson, and Justice Willett, dissenting.
The Court holds that Cantey Hanger conclusively established its affirmative defense of attorney immunity because its alleged conduct occurred within the scope of its representation of Simenstad in the divorce proceeding. 467 S.W.3d 477, 480. While I agree with much of the Court‘s description of the attorney immunity doctrine and the purposes underlying it, I think the Court overlooks an important element of the form of attorney immunity at issue in this case—that the attorney‘s conduct must have occurred in litigation—and applies the attorney immunity doctrine in a manner that results in a much broader, more expansive liability protection. I would hold that Cantey Hanger‘s summary judgment evidence failed to conclusively establish that its alleged conduct occurred in litigation and that summary judgment was therefore improper. I would affirm the court of appeals’ judgment.
The circumstances in which lawyers may be subject to civil liability to nonclients are wide and varied. See, e.g.,
In Texas, the attorney immunity doctrine, as it applies to litigation or other related proceedings, has developed under two closely related legal theories.1 The
Nearly thirty years before Kruegel, this Court adopted the Texas Commission of
rule and an exception to the general rule based on an attorney‘s negligent misrepresentations); Barcelo v. Elliott, 923 S.W.2d 575, 577-79 (Tex. 1996). Moreover, a third party‘s reliance on an attorney‘s representations made in certain adversarial contexts might be unjustified as a matter of law. See Chu v. Hong, 249 S.W.3d 441, 446 n.19 (Tex. 2008); McCamish, 991 S.W.2d at 794 (“Generally, courts have acknowledged that a third party‘s reliance on an attorney‘s representation is not justified when the representation takes place in an adversarial context.“). For other possible examples of immunities or defenses available to an attorney, the comments to the
Appeals’ opinion in Poole v. Houston & T.C. Railway Co., 58 Tex. 134 (1882). In that case, a seller sought to stop the shipment of goods that had been sold on credit to an insolvent buyer. Id. at 135. The buyer and its attorney then engaged in a fraudulent scheme designed to prevent the seller from stopping the shipment. See id. at 135, 137. In its simplest form, the scheme required the buyer to fraudulently assign a bill of lading to the attorney, the attorney to intercept the goods by presenting the fraudulent bill of lading to a railroad station agent, and the attorney to return the goods to the buyer. See id. Following the successful execution of the scheme, the seller sued the attorney for fraud and tried the lawsuit to a jury. See id. The trial court charged the jury “that, to make the defendant [attorney] liable, it must be shown by the evidence that he was acting, not as agent of [his client], but for himself.” Id. This Court held that the trial court‘s charge was erroneous because it stated that the attorney could not be liable for fraud committed at the behest of his principal. Id. at 137-38. More important to the issue presented today, the Court held that the attorney was not immune from civil liability because his fraudulent scheme was “entirely foreign to the duties of an attorney.” Id. at 137.
The opinion in Kruegel was authored against this backdrop. In Kruegel, the plaintiff sued a law firm for “conspiracy,
A comparison of Kruegel and Poole is critical to understanding the context in which litigation immunity applies. In both cases, the attorney or law firm allegedly engaged in conduct that would be actionable without attorney immunity. The only meaningful distinction between the outcomes is the context in which that conduct occurred. In Kruegel, the conduct occurred in litigation, while in Poole the conduct occurred outside of any litigation. In my view, the only way to reconcile these cases and give meaning to the purpose behind attorney immunity is to require the defendant-attorney‘s conduct to have occurred in litigation.
Despite clearly announcing litigation immunity‘s existence, the court in Kruegel did little to define its scope and this Court has not, until today, readdressed the issue. The courts of appeals, however, have agreed with my view of Kruegel and Poole and generally require the attorney‘s conduct to have occurred in litigation for litigation immunity to apply. See, e.g., Renfroe, 947 S.W.2d at 287-88; Bradt, 892 S.W.2d at 72; Morris, 398 S.W.2d at 947-48. Moreover, the courts of appeals require the attorney‘s conduct to involve the provision of legal services. See, e.g., Gaia Envtl., Inc. v. Galbraith, 451 S.W.3d 398, 404 (Tex. App.-Houston [14th Dist.] 2014, pet. denied) (noting that litigation immunity would not apply if an attorney were to physically assault the opposing parting during trial); Bradt, 892 S.W.2d at 72 (same). To address the type of concern raised in Gaia Environmental, Inc., federal courts applying Texas law require the attorney‘s conduct to involve “the office, professional training, skill, and authority of an attorney.” See, e.g., Miller v. Stonehenge/Fasa-Tex., JDC, L.P., 993 F. Supp. 461, 464 (N.D. Tex. 1998) (citing Taco Bell Corp. v. Cracken, 939 F. Supp. 528, 532 (N.D. Tex. 1996)). The courts of appeals have extended litigation immunity to both an attorney‘s conduct and statements. See, e.g., Alpert v. Crain, Caton & James, P.C., 178 S.W.3d 398, 405 (Tex. App.-Houston [1st Dist.] 2005, pet. denied) (statements and conduct); Morris, 398 S.W.2d at 947 (conduct).
The policy reasons behind litigation immunity compel the conclusion that, to be entitled to litigation immunity, the defendant-attorney‘s conduct must have occurred in litigation. One of the most well-known maxims of the legal profession is that attorneys must zealously advocate for their clients. See Bd. of Law Exam‘rs v. Stevens, 868 S.W.2d 773, 780 (Tex. 1994) (describing how the Texas Disciplinary Rules of Professional Conduct require attorneys to zealously represent their clients). The courts of appeals have universally reasoned that litigation immunity furthers this goal. See, e.g., Alpert, 178
The Court recognizes that this form of attorney immunity traditionally applies in the litigation context and purportedly requires Cantey Hanger‘s alleged conduct to have occurred in the divorce proceeding.2 See 467 S.W.3d at 482 n.6. But the Court
The outcome of this case is dictated by its procedural posture. This case comes to the Court on review of the trial court‘s grant of Cantey Hanger‘s motion for traditional summary judgment on its affirmative defense of attorney immunity. The Court correctly states that a party moving for traditional summary judgment has the burden to conclusively prove its affirmative defense, and that reviewing courts “take as true all evidence favorable to the nonmovant, and ... indulge every reasonable inference and resolve any doubts in the nonmovant‘s favor.” 467 S.W.3d at 481 (quoting Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005)). However, a correct application of this standard of review to the summary judgment evidence before us requires a different result.
Cantey Hanger supported its motion with the affidavits of two of its attorneys who swore that Cantey Hanger was “retained to represent Ms. Simenstad in her divorce proceeding,” including pursuing post-judgment remedies and claims against Byrd‘s estate in bankruptcy, and that all of its actions “were made in the course and scope of representing Ms. Simenstad.” Cantey Hanger also included the divorce decree in the summary judgment record. The divorce decree awarded Simenstad three aircraft, made Simenstad responsible for the ad valorem taxes, liens, or assessments associated with the aircraft, and required Simenstad‘s attorneys—by then Cantey Hanger—to prepare any documents necessary to effectuate the transfer of the airplanes within ten days of its entry.
In response to the motion for summary judgment, the plaintiffs submitted an affidavit in which Byrd swore that Simenstad had never been an owner, officer, manager, or director of Lucy Leasing or PGB Air. He also swore that “Cantey Hanger was to draft the documents to effectuate the transfer of the airplane for me to sign on behalf of Lucy Leasing,” and that “Simenstad sold one of the airplanes that was awarded to her in the Divorce Decree” over one year after the entry of the divorce decree. Further, Byrd swore that Simenstad signed the bill of sale as a “manager” of Lucy Leasing, which made Lucy Leasing liable for the sales tax incurred by the transaction.
This summary judgment evidence is lacking. The divorce decree was a final judgment that terminated the underlying divorce litigation, see Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001) (stating that final judgments dispose of all pending parties and claims), and merely establishes that the parties had litigated a
Viewing this evidence in the light most favorable to and indulging every reasonable inference in favor of the plaintiffs, I cannot conclude, as the Court does, that Cantey Hanger conclusively established that its alleged conduct occurred in litigation. Rather, the summary judgment evidence allows for the reasonable inference that Cantey Hanger‘s drafting of the bill of sale, if it occurred as the plaintiffs allege, constituted participation in a fraudulent business scheme that took place well after the divorce litigation ended. I therefore conclude that this case is similar to Poole, under which the Court held that an attorney was not immune for his involvement in a fraudulent business scheme that arose out of an arguably adversarial relationship between a seller and an insolvent buyer.6 See Poole, 58 Tex. at 135, 137.
Court‘s opinion in Poole. In that case, the attorney‘s presentation of a bill of lading—a document of legal significance—was certainly squarely in the scope of the attorney‘s representation, but was nevertheless determined to be part of a fraudulent business scheme. See Poole, 58 Tex. at 135, 137. I look to all of the evidence surrounding Cantey Hanger‘s alleged drafting of the bill of sale—also a document of legal significance—and conclude that the alleged drafting occurred outside of litigation. I do not infer or conclude that the alleged drafting did not involve the provision of legal services, and therefore do not run afoul of the type-of-conduct principle.
other papers in the case,” see James, 637 S.W.2d at 916-17; (2) in the due course of “proceedings before executive officers, and boards and commissions which exercise quasi-judicial powers,” Reagan v. Guardian Life Ins. Co., 140 Tex. 105, 166 S.W.2d 909, 912 (1942); or (3) in serious contemplation of a judicial or quasi-judicial proceeding, Shell Oil Co., 464 S.W.3d at 657-58. Here, Cantey Hanger‘s affidavits do not indicate whether there was an ongoing judicial or quasi-judicial proceeding, nor do they indicate that Cantey Hanger‘s conduct occurred in “open court, pre-trial hearings, depositions, affidavits[,] any of the pleadings or other papers in the case,” or any other aspect of a proceeding. See James, 637 S.W.2d at 916-17. Nor do the affidavits indicate that Cantey Hanger‘s conduct occurred in serious contemplation of a judicial or quasi-judicial proceeding. See Shell Oil Co., 464 S.W.3d at 657-58.
The Court holds that attorney immunity shields Cantey Hanger from liability arising from its alleged drafting of the bill of sale more than a year after entry of the divorce decree. Instead of limiting this form of attorney immunity to the context of litigation, the Court‘s cursory analysis implicitly adopts a test in which attorneys are shielded from civil liability to nonclients if their conduct merely occurs in the scope of client representation or in the discharge of duties to the client. This holding enlarges the scope of litigation immunity in a manner that does not comport with its purpose and protects attorneys from liability for conduct involving a transaction foreign to the plaintiffs and the divorce court and outside the context of litigation. This test is not supported by Poole or Kruegel, is contrary to every published court of appeals opinion on the subject, and has been flatly reject by the Restatement. See
Moreover, the Court‘s holding that Cantey Hanger‘s alleged conduct is not actionable creates a troubling jurisdictional dichotomy on remand. On one hand, the court of appeals’ holding that the plaintiffs’ fraud claims against Simenstad for “conspir[ing] with Cantey Hanger to falsify an airplane bill of sale ... are not claims attempting to enforce the terms of the decree” and are therefore not within the continuing, exclusive jurisdiction of the divorce court, 409 S.W.3d at 776, remains intact because it was not challenged on appeal. On the other hand, the Court holds that the plaintiffs’ fraud claims against Cantey Hanger, which are based on the same transaction, are barred because the alleged conduct was within the scope of its representation of Simenstad in the divorce proceeding. 467 S.W.3d at 480. Based on the Court‘s opinion today and the unchallenged portion of the court of appeals’ judgment, Simenstad‘s alleged conduct regarding the sale of the plane is separate from the divorce proceeding for purposes of the trial court‘s jurisdiction, but her attorneys’ alleged conduct regarding the same transaction is a part of the divorce proceeding for purposes of attorney immunity. This inconsistent results begs the question of whether the trial court on remand actually has jurisdiction over the claims against Simenstad, as the court of appeals held, or whether those claims are within the divorce court‘s continuing, exclusive jurisdiction.
For its alleged conduct to be protected by attorney immunity, Cantey Hanger must have conclusively established that its alleged conduct occurred in litigation. I would hold that Cantey Hanger did not meet its summary judgment burden and, on this record, the attorney immunity doctrine provides Cantey Hanger no protection from the plaintiffs’ fraud, conspiracy, and aiding and abetting claims stemming from the allegedly falsified bill of sale. I would affirm the court of appeals’ judgment.