NO “ATTORNEY IMMUNITY” FOR CONSPIRACY TO COMMIT FRAUD

Santiago v. Mackie Wolf Zientz & Mann, PC
Dallas Court of Appeals, No. 05-13-00620-CV (August 19, 2014)
Justices Wright, Bridges, and Richter (Opinion)
When the Santiagos received a notice of default and acceleration on their home equity loan, they demanded to inspect the original note. Counsel for the registered holders, the Mackie Wolf law firm, produced a note for inspection. But the Santiagos claimed the proffered promissory note was counterfeit. They sued the registered note holders for fraud and conspiracy and later added the holders’ counsel, Mackie Wolf, as well. Mackie Wolf moved for summary judgment on the sole ground of “attorney immunity”—i.e., as the Dallas Court of Appeals explained in Toles v. Toles, “an attorney’s conduct, even if frivolous or without merit, is not actionable [by a third party] as long as the conduct was part of the discharge of the lawyer’s duties in representing his or her client.” The trial court granted summary judgment, but the Court of Appeals reversed, observing that this protection for attorneys “is not without limits.” The Court held that claims of fraud and conspiracy to commit fraud lie outside the “attorney immunity” doctrine, and because this immunity was the only basis Mackie Wolf had asserted in its motion, the motion should have been denied. Along the way, the Court noted that attorney immunity is an affirmative defense that ordinarily must be pleaded under Rule 94, something Mackie Wolf had not done. But the Court found plaintiffs had put the immunity doctrine in play by addressing the issue in their own petition, thereby curing Mackie Wolf’s pleading omission—but not the shortcomings of its motion for summary judgment.

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