Nonsense lawsuits against lawyers by pro se litigants can be costly and require an exuberant amount of effort and time. But recent Texas Supreme Court rulings have supplied some tools for lawyers in those situations.

In Youngkin v. Hines, the court determined in an April decision, that a lawyer who was sued for fraud not only had immunity, but could also use Texas’ anti-SLAPP statute to win both dismissal and attorney fees. The ruling demonstrated how the Texas Citizens Participation Act—designed to protect citizens from lawsuits that attack free speech—can be used to raise a lawyer’s qualified immunity defense.

Youngkin v. Hines comes just three years after another key ruling, Cantey Hanger, LLP v. Byrd in 2015. In that case, the court held that qualified immunity protects a lawyer from a nonclient’s lawsuit so long as the claim arises from the lawyer “doing what lawyers do.” The court noted that it doesn’t matter how the plaintiff phrases the claim—fraud, conspiracy, etc.—as long as the lawyer was doing the work of a lawyer immunity should be provided.

This begs the question: “What do lawyers do?” If a lawyer was engaged to represent a client, and was acting in the context of an attorney-client relationship, then the lawyer is immune from being sued by strangers to the attorney-client relationship.

Bottom line: the Texas Supreme Court in Cantey Hanger held that it doesn’t matter what label a plaintiff puts on its cause of action; the key is what activities the lawyer performed. So long as there was an attorney-client relationship, and the lawyer is being sued for what was done in the furtherance of that relationship, then qualified immunity applies. Of course, there are exceptions, but absent such exceptions, the lawyer should win summary judgment. Under Cantey Hanger, a lawyer being sued by a nonclient who moves for summary judgment should support the defense by providing an affidavit explaining his/her representation of the client and outlining how actions taken supported that relationship.

But what about the lawyer’s time away from the practice while dealing with such nonsense?  What if the judge wrongfully denies summary judgment?

Enter this year’s Youngkin v. Hines. In April 2018, the Texas Supreme Court dealt with a claim of attorney qualified immunity raised by attorney Bill Youngkin who was sued by his clients’ opponents for putting a settlement on the record that he purportedly knew his clients would never complete. Youngkin raised the qualified immunity defense in a motion to dismiss pursuant to the TCPA. However, Youngkin, did not file an affidavit as required under Cantey Hangar. The appellate court then held that anti-SLAPP applied, but denied Youngkin’s motion to dismiss because he did not “prove up” his qualified immunity defense.

Youngkin’s argument for why anti-SLAPP should apply was that his actions were something that lawyers regularly do and were part of his client’s constitutional right to petition the government.

The opposing parties argued that the anti-SLAPP statute was unavailable to Youngkin because he was not pursuing his constitutional right to petition the government—he was pursuing only his clients’ rights—and that pursuing someone else’s constitutional rights doesn’t cut the mustard. Moreover, they argued, Youngkin failed to prove up via affidavit that he was acting for a client at the time of the allegedly bad act and thus attorney-qualified immunity was not supported by the evidence.

Justice Debra Lehrmann disagreed, noting that Youngkin’s act of putting the settlement on the record was indeed part of the “right to petition” under the TCPA as it involved the making or submitting of a statement or document in or pertaining to a judicial proceeding. More importantly, the court noted that the Legislature explicitly and expansively defined the term “exercise of the right to petition” in the TCPA. Thus, the court determined that it would be improper to inject a requirement that each action complained about must somehow, in and of itself,  be constitutionally guaranteed: “Whether that definition maps perfectly onto the external constitutional rights it aims to protect is irrelevant; we are bound by the statutory definition for the purposes of the TCPA.”

Because the TCPA applied, the court considered whether it mattered if plaintiffs could prove the elements of their claims. The court concluded that it did not matter as they could not overcome the preclusive effect of attorney-qualified immunity.

While, the court in Cantey Hangar stated that the desired method for proving that the defendant lawyer was doing “what lawyers do” was by affidavit. Here, the court noted that although the burden was on Youngkin to prove his defense of qualified immunity, all he had to do was show 1. the type of conduct at issue and, 2. whether that conduct was in the scope of representation. The court stated: “Though it would have been better practice for Youngkin to have submitted an affidavit attesting to those necessary facts, it does not prevent him from proving his defense under the circumstances of this case.”

Takeaway: The TCPA can be used to raise a lawyer’s qualified immunity defense. The filing of an anti-SLAPP motion stays discovery in the case. A quick hearing on the anti-SLAPP motion is mandated. And, if the lawyer wins, he/she can get an award of attorney fees. If the lawyer loses the motion, an expedited interlocutory appeal is allowed.

Law practices make money from doing what lawyers do best. A lawyer defending against one of these lawsuits should hire an attorney who does this type of work. Don’t allow the “cost of doing business” to become a time killer. Moreover, after Youngkin, attorney fees may be recovered.

Houston lawyer Gregg Weinberg, a shareholder with Roberts Markel Weinberg Butler Hailey, heads the firm’s professional liability, litigation and arbitration sections.