On May 6, 2022, the Texas Supreme Court issued an opinion in Taylor v. Tolbert, No. 20-0727, (Tex. May. 6, 2022), deviating from its prior stance that “attorneys are generally immune from civil liability to nonclients for actions taken within the scope of legal representation if those actions involve ‘the kind of conduct’ attorneys engage in when discharging their professional duties to a client.” In the past, the Texas Supreme Court focused on the type of activity that the attorney was engaged in, rather than on the purported criminal nature of the conduct. The court held that:

“when conduct is prohibited by statute, the attorney-immunity defense is neither categorically inapplicable nor automatically available, even if the defense might otherwise cover the conduct at issue. In such cases, whether an attorney may claim the privilege depends on the particular statute in question.”

The underlying case involves a contentious child custody dispute. Attorney Terisa Taylor represented Mark Broome and Vivian Robbins in regard to their child, N.B. The child (N.B.) visited her Aunt Fiona McNally during the summer of 2013. The child used her aunt’s iPad to log in and to check messages. At some point during the visit, McNally’s iPad began receiving unsolicited messages from 30 different people, none of whom were aware that their private messages to another individual were being intercepted, and none of whom had consented to sharing those messages. McNally and/or her husband mailed the iPad to Broome, who in turn provided copies of messages to his attorney, Taylor, who used them in the custody proceeding. McNally and Broome were siblings.