We’ve all been told that nonsense lawsuits from pro se litigants and former opponents are just “the cost of doing business.” But the cost of doing business keeps increasing. What do you do when you get sued by someone you’ve never represented? If you are not in private practice, whether it be real estate or litigation, then quit reading and go read about the Houston Astros, who are more exciting. If you are, however, actively practicing law and you’ve been sued by someone you never represented, read on.
You can always fight back with hammer and tong. Of course, I’m reminded of an old lawyers’ saying, “Son, don’t fight crazy—they have no boundaries and will cost you a fortune.” But you are a lawyer and you don’t ever want to give in to those people, right?
So first things first. You have malpractice insurance, so you should turn it in, right? Well, yes and no. If you turn it in, you lose full control and will be pressured by the insurance carrier to settle because of the ever-increasing cost of defense. The insurer will find a lawyer to represent you—but not without a major reservation of the insurance company’s rights to deny having to pay because you have no “duty” to the plaintiff who was not your client. Wait, what the heck?
But if you don’t turn it in to the insurance carrier, the insurer may later say you’re not covered in this particular matter in the event it goes south. And later the insurance company will ask if you’ve been sued in the past year when you come up for renewal or apply for a new policy.
You know you probably won’t lose the case. However, the main issue becomes the cost and time of defending yourself against a bogus lawsuit. If you turn it in to your insurance carrier, you will likely suffer the cost of paying defense costs up to your deductible unless and until the matter is resolved. And this case will count toward your frequency of claims. Insurance carriers love to rate you based on frequency and severity of claims.
So what’s a busy practitioner to do?
The Texas Supreme Court, in Cantey Hanger v. Byrd, 467 S.W.3d 477 (Tex. 2015), provides a serious weapon for your upcoming battle.
In Cantey Hanger, the court held that qualified immunity protects a lawyer from a non-client lawsuit so long as the claim arises from the lawyer “doing what lawyers do” on behalf of a client. It doesn’t matter how the plaintiff phrases the claim—so long as the lawyer was doing the traditional work of a lawyer, something that should provide immunity from the suit.
Annie Lennox of the Eurythmics sang about “what lovers do.” In this instance, I like to think about “what lawyers do.” That is the real nugget here. If you were engaged to represent a client and were doing what lawyers traditionally do—write letters, file pleadings, draft documents (to name a few)—in the context of an attorney-client relationship, then you are supposedly immune from being sued by strangers to the attorney-client relationship.
According to the Cantey Hanger opinion, you should move for summary judgment supported by your own affidavit stating that you represented Company/Person X and that whatever you are accused of doing was done in carrying out that relationship. Transactional or litigation—it doesn’t matter.
There is no guarantee that a judge will grant a summary judgment. Some judges want more. But the Texas Supreme Court has said more is not needed. Remember, this is not a client suing. A non-client adversary should not be able to raise a fact issue with regard to whether you had an attorney-client relationship because this person is a stranger to that relationship. Moreover, it is not for the “stranger” to define your relationship. That is solely within the bailiwick of you and your client.
Bottom line: the Texas Supreme Court in Cantey Hanger took away the plaintiff’s ability to control the playing field by holding that it doesn’t matter what label the plaintiff puts on its cause of action; the key is what activities the lawyer performed. So long as you had an attorney-client relationship, and whatever you are being sued over was done in the furtherance of that relationship, you should be entitled to summary judgment on the claims asserted against you by folk you never represented. Of course there are exceptions, subsets and other such details. But generally speaking, you should win summary judgment.
Now, there are judges who will want more. So provide more. We all know this is a BS lawsuit and the judge needs to recognize that reality and get rid of the case. What to do about a judge who won’t follow the law is beyond the scope of this article.
Your law practice makes money from you doing what you do best. Hire someone to represent you who does this type of work. Don’t allow the “cost of doing business” to become a time killer.