YES, THE TCPA PROTECTS LAWYERS’ SPEECH, TOO

Youngkin v. Hines
Supreme Court of Texas, No. 16-0935 (April 17, 2018)
Justice Lehrmann (Opinion, linked here)

Brent Rubin

During trial in a property dispute, Youngkin, an attorney, negotiated a settlement between his clients, the Scotts, and Hines. Youngkin recited the terms of the settlement into the court record as prescribed by Texas Rule of Civil Procedure 11. Hines later argued the settlement entitled him to full ownership of a tract of land but that the Scotts deeded him only partial ownership. Hines sued the Scotts for fraud and breach of the settlement agreement. Hines also sued Youngkin for participating in the Scotts’ allegedly fraudulent scheme by, among other things, entering into the Rule 11 agreement on the Scotts’ behalf while purportedly knowing the Scotts had no intent to comply.

Youngkin moved to dismiss under the Texas Citizens Participation Act, Texas’s anti-SLAPP statute. The trial court and the court of appeals denied Youngkin’s request, but the Supreme Court of Texas disagreed, finding the claims against Youngkin should be dismissed. The Legislature enacted the TCPA for the purpose of “safeguard[ing] the constitutional rights of persons to petition, speak freely, [and] associate freely.” The TCPA applies when a claim is based on or related to the exercise of one of those rights. Once a court determines that the TCPA applies, a plaintiff must put forward prima facie evidence of each element of its claim to avoid dismissal. Alternatively, a defendant can obtain dismissal by establishing a defense by a preponderance of the evidence.

The TCPA defines the exercise of the right to petition to include “a communication in or pertaining to ... a judicial proceeding.” Hines argued that Youngkin was merely speaking for his clients and was thus not exercising any personal First Amendment right entitled to protection under the TCPA, pointing to the purposes provision of the statute. The Court disagreed. It explained that the TCPA’s application is not restricted to activities protected by the First Amendment because the portion of the statute defining the “exercise of the right to petition” contains no such limitation. The Court ruled that under the plain language of the TCPA, Youngkin’s recitation of the Rule 11 agreement in open court was an exercise of the right to petition triggering application of the TCPA.

The Court then concluded Youngkin was entitled to dismissal because he established the affirmative defense of attorney immunity under the Court’s 2015 decision in Cantey Hanger, LLP v. Byrd. In Cantey Hanger, the Court held that an attorney’s liability to non-clients is limited to conduct outside the scope of his or her representation of his or her client or for conduct foreign to the duties of a lawyer. At bottom, the dispute between Hines and the Scotts turned on a disagreement over the substance of the settlement agreement. Youngkin’s negotiation of and subsequent advocacy for a favorable interpretation of that agreement in the service of his clients—“even if done improperly”—fell within the scope of his representation and thus afforded him attorney immunity and dismissal under the TCPA.