Making Attorney Misconduct Pay, Texas Supreme Court Shows the Way: A Critical Comment on Bethel v. Quilling (Tex. 2020) (rejecting criminal-conduct exception to "attorney immunity" in Texas)

Texas Supreme Court continues to exempt an entire industry (the legal profession) from civil liability; lets attorneys and law firms profit from lawsuits brought to hold them accountable for wrongdoing. 

Bethel v. QUILLING, SELANDER, LOWNDS, WINSLETT & MOSER, P.C., No. 18-0595 (Tex. Feb. 21, 2020) (Opinion by Justice John P. Devine) (holding that Rule 91a was properly applied to dismiss lawsuit on pleadings alleging that defendant attorneys and law firm committed fraud, trespass to chattel, and conversion, based on the affirmative defense of attorney immunity).

FROM LAW LICENCE TO LICENSE TO LIE AND CHEAT

The SCOTX previously blessed Texas attorneys’ invocation of the Texas Citizens Participation Act (TCPA) to quash lawsuits against them, and collect attorney’s fees from those who seek to hold them accountable for their misdeeds. See Youngkin v. Hines, 546 S.W.3d 675, 681 (Tex. 2018); also see Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015) (holding, as a general rule, that Texas attorneys are immune from civil liability to non-clients for actions taken in connection with representing a client in litigation.).  

The Texas Supreme Court has now gone a step further in blessing wayward attorneys’ and law firms' utilization of Rule 91a to dismiss such civil suits.

TRCP 91a - THE "FRIVOLOUS SUIT" DISMISSAL RULE 

Rule 91a of the Texas Rules of Civil Procedure is a “tort reform” rule that authorizes a defendant to seek early dismissal of a lawsuit alleged to have no merit, and allows the defendant to stick the plaintiff with fees incurred in procuring the dismissal.

Traditionally, a dismissal on an affirmative defense required a motion for summary judgment by the defendant, for which the Texas Rules of Civil Procedure authorizes no fee recovery. Traditionally, the defendant had the burden to prove the affirmative defense, rather than the plaintiff, and had to do so with competent evidence under the summary judgment standard.   

All that is now history when a victim of attorney malfeasance sues the perpetrator. Thanks to the jurisprudential protectionism the Texas High Court has bestowed upon its most captive audience, Texas attorneys now have the right to terminate lawsuits against them by flashing their bar card—as it were. They can take advantage of the status-based civil immunity that the Texas Supreme Court has seen fit to grant them, and can even benefit from their crimes.  

Devine words:  

“Criminal conduct is not categorically excepted from the protections of attorney civil immunity when the conduct alleged is connected with representing a client in litigation”

RULE BY LAWYERS, FOR LAWYERS, AND TO FILL THE POCKETS OF LAWYERS 

How did the nine Republican jurists on the state court of last resort pull this off? 

They did so by engaging in a sophisticated form of legislating from the bench: Transforming the common-law doctrine of judicial proceedings privilege (no defamation liability for statements made in a judicial proceeding) into a broad-sweeping and categorical attorney immunity; - an immunity that shields Texas attorneys from civil liability to non-clients--i.e. the rest of society--and lets them lie, cheat, and engage in fraud so long as they lie, cheat, and engage in fraud to advance the interests of a client. So long as they do it while practicing their once-noble profession. The Supremes originally amended the doctrine by judicial fiat in Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015), and now cite that case -- i.e. themselves -- as legal authority. 

  

But the Supremes did not stop at creating a blanket immunity for the industry they are supposed to regulate and hold to high professional and ethical standards. As seen in Bethel v. Quilling Texas attorneys who engage in illegal and unethical conduct in their work on behalf of clients can count on being rewarded. Thanks to the Texas Supreme Court immunity grant and rule 91a approval, the worst in the bar stand to profit some more from their malfeasance if they get sued. Indeed, they can now count themselves lucky to be sued because they will get an opportunity to run up attorney's fees and shift them to the victims of the misconduct who were brazen enough to fight back and take them to court.
    

Thanks to the common-law generosity of the SCOTX, Texas attorneys can now utilize Rule 91a to stick it to their victims; -- just in case the amended TCPA doesn’t do the trick.

  

It’s tort reform plus.

Bethel v. Quilling Dismissal Order (above) 

and Attorney Fee Award Order to the Defendants (below)

IN THE SUPREME COURT OF TEXAS

444444444444

NO. 18-0595

444444444444

CHERLYN BETHEL, INDIVIDUALLY AND AS THE REPRESENTATIVE OF THE ESTATE

OF RONALD J. BETHEL, DECEASED, PETITIONER,

v.

QUILLING, SELANDER, LOWNDS, WINSLETT & MOSER, P.C., AND JAMES H.

MOODY, III, RESPONDENTS

4444444444444444444444444444444444444444444444444444

ON PETITION FOR REVIEW FROM THE

COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS

4444444444444444444444444444444444444444444444444444

Argued November 7, 2019

JUSTICE DEVINE delivered the opinion of the Court.

This case presents two issues: first, whether an affirmative defense may be the basis of a

Rule 91a motion to dismiss; and second, whether the alleged destruction of evidence is an action

“taken in connection with representing a client in litigation,” thus entitling the respondent attorneys

to attorney immunity. We join the court of appeals in concluding that Rule 91a permits dismissal

based on an affirmative defense. See 581 S.W.3d 306, 310 (Tex. App.—Dallas 2018). We also

agree with the court of appeals that, on the facts of this case, the respondent attorneys are entitled

to attorney immunity. See id. at 311-13. Accordingly, we affirm.

I

Petitioner Cherlyn Bethel’s husband, Ronald, tragically died in a car accident while towing

a trailer. Bethel sued the trailer’s manufacturer, alleging that the trailer’s faulty brakes caused the

accident. Law firm Quilling, Selander, Lownds, Winslett & Moser, as well as attorney James

“Hamp” Moody (collectively, Quilling), represented the manufacturer in the lawsuit. Bethel alleges

that Quilling intentionally destroyed key evidence in the case by disassembling and testing the

trailer’s brakes before Bethel had the opportunity to either examine them or document their original

condition.

Bethel sued Quilling for, among other things, fraud, trespass to chattel, and conversion.1

Quilling moved to dismiss the case under Texas Rule of Civil Procedure 91a, arguing that it was

entitled to attorney immunity as to all of Bethel’s claims. The trial court granted Quilling’s motion

and dismissed the case. Bethel appealed, arguing that (1) affirmative defenses, such as attorney

immunity, cannot be the basis of a Rule 91a dismissal, and (2) attorney immunity did not protect

Quilling’s conduct.

The court of appeals affirmed. 581 S.W.3d 306. First, the court of appeals concluded that

attorney immunity could be the basis of a Rule 91a motion because the allegations in Bethel’s

pleadings established Quilling’s entitlement to the defense. Id. at 309–10. Second, the court of

appeals reasoned that Quilling’s actions, while possibly wrongful, were the “kinds of actions” that

are part of an attorney’s duties in representing a client in litigation. Id. at 311–13. Thus, the court

1 Bethel also sued the experts who conducted Quilling’s examination but later nonsuited them to perfect this appeal. 581 S.W.3d 306, 309.

PAGE 2

of appeals held that attorney immunity barred all of Bethel’s claims.2

II

Texas Rule of Civil Procedure 91a provides that a party “may move to dismiss a cause of

action on the grounds that it has no basis in law or fact.” TEX. R. CIV. P. 91a.1. “A cause of action

has no basis in law if the allegations, taken as true, together with inferences reasonably drawn from

them, do not entitle the claimant to the relief sought.” Id. “A cause of action has no basis in fact

if no reasonable person could believe the facts pleaded.” Id. In ruling on a Rule 91a motion, a court

“may not consider evidence . . . and must decide the motion based solely on the pleading of the

cause of action.” TEX. R. CIV. P. 91a.6. We review the merits of a Rule 91a motion de novo. City

of Dallas v. Sanchez, 494 S.W.3d 722, 724 (Tex. 2016) (per curiam).

Attorney immunity is an affirmative defense. Youngkin v. Hines, 546 S.W.3d 675, 681 (Tex.

2018). Bethel reasons that affirmative defenses are generally waived unless they are raised in the

defendant’s pleading. TEX. R. CIV. P. 94. Thus, Bethel contends, a court must look to the

defendant’s pleading to determine whether an affirmative defense is properly before the court.

However, Rule 91a.6 expressly limits the court’s consideration to “the pleading of the cause of

action,” together with a narrow class of exhibits. TEX. R. CIV. P. 91a.6. Because only a plaintiff’s

pleading is a “pleading of a cause of action,” Bethel argues that courts may not consider a

defendant’s pleading in making a Rule 91a determination. Bethel therefore concludes that an

affirmative defense can never be the basis of a Rule 91a motion.

2  The court of appeals also concluded that Bethel perhaps waived the Rule 91a argument, but the court addressed the merits of the argument anyway. 581 S.W.3d at 309. In this Court, the parties agree that Bethel did not waive the argument and urge the Court to reach the Rule 91a question on the merits.

PAGE 3

We disagree. We interpret rules of procedure according to our usual principles of statutory

interpretation. Ford Motor Co. v. Garcia, 363 S.W.3d 573, 579 (Tex. 2012). We therefore begin

with the text of the rule and construe it according to its plain meaning. Id. However, Texas Rule

of Civil Procedure 1 provides that the rules of procedure “shall be given a liberal construction” to

further the rules’ objective of “obtain[ing] a just, fair, equitable[,] and impartial adjudication” of

parties’ rights. TEX. R. CIV. P. 1. We thus apply our general canons of statutory interpretation in

light of this specific guiding rule. See, e.g., In re Bridgestone Ams. Tire Operations, LLC, 459

S.W.3d 565, 569 (Tex. 2015).

Bethel urges us to focus on the rule’s requirement that the court “must decide the motion

based solely on the pleading of the cause of action.” TEX. R. CIV. P. 91a.6 (emphasis added). As

Bethel sees it, this provision prohibits a court deciding a Rule 91a motion from considering anything

other than the plaintiff’s pleading. Of course, it is not possible to “decide the motion” without

considering the motion itself, in addition to the plaintiff’s pleading. Additionally, the rule provides

that the court may hold a hearing on the motion. TEX.R.CIV. P. 91a.6. Thus, the rule contemplates

that a court may consider at least the substance of the Rule 91a motion and arguments at the hearing,

in addition to the plaintiff’s pleadings, in deciding the motion. Bethel’s proffered interpretation

would render these aspects of the rule meaningless, preventing a court from considering even the

substance of a Rule 91a motion or a response in deciding whether to dismiss the case. See Silguero

v. CSL Plasma, Inc., 579 S.W.3d 53, 59 (Tex. 2019) (noting that in interpreting a statute, we avoid

“absurd or nonsensical results” (quotations omitted)). Bethel’s overly narrow interpretation of one

piece of the rule simply does not comport with the text of the rule as a whole. See id. (“The statutory

PAGE 4

words must be determined considering the context in which they are used, not in isolation.”).

Construing the rules of procedure liberally, as Rule 1 requires us to do, we conclude that

Rule 91a limits the scope of a court’s factual, but not legal, inquiry. We begin with the text of the

rule. Ford Motor Co., 363 S.W.3d at 579. Rule 91a provides that “the court may not consider

evidence in ruling on the motion and must decide the motion based solely on the pleading of the

cause of action.” TEX.R.CIV. P. 91a.6 (emphasis added). Thus, the rule contrasts “the pleading of

the cause of action” with “evidence,” not the defendant’s pleading. This dichotomy indicates that

the limitation is factual, rather than legal, in nature. Further, the rule provides that a court may

dismiss a claim as lacking a basis in law “if the allegations, taken as true, together with inferences

reasonably drawn from them, do not entitle the claimant to the relief sought.” TEX.R.CIV.P. 91a.1.

Again, the rule limits the scope of the court’s factual inquiry—the court must take the “allegations”

as true—but does not limit the scope of the court’s legal inquiry in the same way. Rather, the rule

provides that a claim lacks a basis in law if the facts alleged “do not entitle the claimant to the relief

sought.” Id. The rule does not limit the universe of legal theories by which the movant may show

that the claimant is not entitled to relief based on the facts as alleged.

This interpretation accounts for the parts of the rule that allow courts to consider the

substance of Rule 91a motions and hearings in addition to the plaintiff’s pleadings. See TEX.R.CIV.

P. 91a.6. Both motions and hearings are avenues by which the movant may present legal theories

as to why the claimant is not entitled to relief. Thus, the legal-factual distinction avoids violence

PAGE 5

to the text of the rule as a whole while preserving the rule’s intended limitation on factual inquiries.3

See Silguero, 579 S.W.3d at 59 (“In interpreting statutes, we must look to the plain language,

construing the text in light of the statute as a whole.”).

Finally, Rule 1 directs us to consider expedition and cost to the parties and the state in

construing rules of procedure. TEX. R. CIV. P. 1 (“To the end that this objective may be attained

with as great expedition and dispatch and at the least expense both to the litigants and to the state

as may be practicable, these rules shall be given a liberal construction.”). Our interpretation of Rule

91a serves these objectives by allowing courts to dismiss meritless cases before the parties engage

in costly discovery. Forcing parties to conduct discovery when the claimant’s allegations

conclusively establish the existence of an affirmative defense would be a significant waste of state

and private resources.

In sum, Rule 91a limits a court’s factual inquiry to the plaintiff’s pleadings but does not so

limit the court’s legal inquiry. In deciding a Rule 91a motion, a court may consider the defendant’s

pleadings if doing so is necessary to make the legal determination of whether an affirmative defense

is properly before the court. We therefore conclude that Rule 91a permits motions to dismiss based

on affirmative defenses “if the allegations, taken as true, together with inferences reasonably drawn

from them, do not entitle the claimant to the relief sought.” TEX.R.CIV. P. 91a.1. Of course, some

affirmative defenses will not be conclusively established by the facts in a plaintiff’s petition.

3 Bethel also argues that we should read Rule 91a narrowly because previous versions of the rule included a mandatory fee-shifting provision. However, the fee-shifting provision is no longer mandatory and does not affect our analysis. See TEX. R. CIV. P. 91a.7 (providing that a court “may award” costs and fees to the prevailing party).

PAGE 6

Because Rule 91a does not allow consideration of evidence, such defenses are not a proper basis for

a motion to dismiss.

In this case, the allegations in Bethel’s petition show that Bethel is not entitled to relief. In

its Rule 91a motion, Quilling simply argued that the facts—as Bethel pleaded them—entitled

Quilling to attorney immunity and thus dismissal under Rule 91a. The trial court did not need to

look outside Bethel’s pleadings to determine whether attorney immunity applied to the alleged facts.

See Youngkin, 546 S.W.3d at 681–83 (holding that a defendant was “entitled to dismissal” based on

attorney immunity, despite the defendant’s failure to support his defense with evidence, because “the

necessary facts [were] not in dispute”); Sabre Travel Int’l, Ltd. v. Deutsche Lufthansa AG, 567

S.W.3d 725, 736–41 (Tex. 2019) (considering a federal preemption affirmative defense in the

context of a Rule 91a motion); cf. AC Interests, L.P. v. Tex. Comm’n on Envtl. Quality, 543 S.W.3d

703, 706 (Tex. 2018) (noting that a Rule 91a motion is not the proper vehicle for dismissal based

on untimely service of process because the court has to look beyond the pleadings to determine

whether process was, in fact, untimely). Taking Bethel’s allegations as true, the trial court

determined that Bethel was not entitled to the relief sought because attorney immunity barred

Bethel’s claims.4

 That is enough for dismissal under Rule 91a.

4 Bethel further argues that, even if an affirmative defense is established on the face of a plaintiff’s pleading, dismissal is improper because there may be additional facts that negate the affirmative defense. However, Bethel has yet to articulate what kind of additional facts would negate attorney immunity in this case. If a plaintiff believes that there are additional facts that would negate an affirmative defense in a Rule 91a motion, the plaintiff may amend her pleadings accordingly. See TEX. R. CIV. P. 63 (allowing amendment in most circumstances); TEX. R. CIV. P. 91a.5(b) (contemplating amendment after a Rule 91a motion is filed).

PAGE 7

III

We next turn to the question of attorney immunity. In Cantey Hanger, LLP v. Byrd, we held

that, “as a general rule, attorneys are immune from civil liability to non-clients for actions taken in

connection with representing a client in litigation.” 467 S.W.3d 477, 481 (Tex. 2015) (quotations

omitted). The immunity inquiry “focuses on the kind of conduct at issue rather than the alleged

wrongfulness of said conduct.” Youngkin, 546 S.W.3d at 681 (emphasis in original). Under this

analysis, “a lawyer is no more susceptible to liability for a given action merely because it is alleged

to be fraudulent or otherwise wrongful.” Id. In this case, however, Bethel urges us to recognize an

exception where a third party alleges that an attorney engaged in criminal conduct during the course

of litigation.5

We recently declined to recognize fraud as an exception to the attorney-immunity doctrine.

In Cantey Hanger, 467 S.W.3d at 484–86, we concluded that a law firm was shielded by attorney

immunity for preparing documents ancillary to a divorce decree, even though the firm allegedly

acted fraudulently in drafting the documents. “An attorney is given latitude to pursue legal rights

that he deems necessary and proper precisely to avoid the inevitable conflict that would arise if he

were forced constantly to balance his own potential exposure against his client’s best interest.” Id.

at 483 (citations and quotations omitted). We recognized that a general fraud exception to attorney

immunity would “significantly undercut” this purpose. Id. Thus, we concluded that “[m]erely

labeling an attorney’s conduct ‘fraudulent’ does not and should not remove it from the scope of

5  Bethel’s briefing frames the issue differently, arguing that “[c]riminal conduct is not ‘an exception to the attorney-immunity doctrine’—it is simply not the type of civil wrong to which the doctrine applies.” However the issue is framed, though, Bethel is asking us to categorically exempt allegedly criminal conduct from attorney immunity.

PAGE 8

client representation or render it ‘foreign to the duties of an attorney.’” Id. Instead, our focus

remained on whether the attorney’s complained-of conduct fell within “the scope of an attorney’s

legal representation of his client.” Id. at 484.

The same reasoning applies here. Under Bethel’s proposed exception, a plaintiff could avoid

the attorney-immunity doctrine by merely alleging that an attorney’s conduct was “criminal.” This

would “significantly undercut” the protections of attorney immunity by allowing non-client plaintiffs

to sue opposing counsel so long as the plaintiffs alleged that the attorney’s actions were criminal in

nature. Id. at 483. We therefore conclude that criminal conduct is not categorically excepted from

the protections of attorney civil immunity when the conduct alleged is connected with representing

a client in litigation. Accord Troice v. Greenberg Traurig, L.L.P., 921 F.3d 501, 507 (5th Cir. 2019)

(making an Erie guess that, under Texas law, attorney immunity “can apply even to criminal acts

so long as the attorney was acting within the scope of representation”).

We have long recognized, however, that attorney immunity is not boundless. See Poole v.

Hous. & T.C. Ry. Co., 58 Tex. 134 (1882) (holding that attorney immunity did not protect actions

taken “for the purpose and with the intention of consummating [] fraud upon [the] appellant”). An

attorney is not immune from suit for participating in criminal or “independently fraudulent

activities” that fall outside the scope of the attorney’s representation of a client. Cantey Hanger, 467

S.W.3d at 483. For example, immunity does not apply when an attorney participates in a fraudulent

business scheme with her client or knowingly facilitates a fraudulent transfer to help her clients

avoid paying a judgment. Id. at 482. Immunity also does not apply when an attorney’s actions do

not involve “the provision of legal services”—for example, when an attorney assaults opposing

counsel. Id. Certainly, there is a wide range of criminal conduct that is not within the “scope of

PAGE 9

client representation” and therefore “foreign to the duties of an attorney.” Id. at 483. Thus, while

we decline to recognize a per se criminal-conduct exception, an attorney’s allegedly criminal

conduct may fall outside the scope of attorney immunity. See Troice, 921 F.3d at 507 (“We

conclude that criminal conduct does not automatically negate immunity, but in the usual case it will

be outside the scope of representation.”). We also note that nothing in our attorney-immunity

jurisprudence affects an attorney’s potential criminal liability if the conduct constitutes a criminal

offense. And other remedies—such as sanctions, spoliation instructions, contempt, and disciplinary

proceedings—may be available even if immunity shields an attorney’s wrongful conduct. See

Cantey Hanger, 467 S.W.3d at 482.

With these principles in mind, and taking Bethel’s factual allegations as true, we conclude

that Quilling’s complained-of actions are the kind of actions that are “taken in connection with

representing a client in litigation.” Cantey Hanger, 467 S.W.3d at 481. Bethel’s petition alleges

that Quilling destroyed evidence in the underlying suit by: (1) disassembling the trailer’s brakes;

(2) failing to “establish any testing/inspection protocol at the time of the disassembly”; (3) failing

to document the disassembly on video; (4) changing the position of the brakes’ adjuster screws to

facilitate the disassembly; (5) actuating some of the brakes to test them; and (6) spilling oil on the

brakes during disassembly. Thus, at bottom, Bethel takes issue with the manner in which Quilling

examined and tested evidence during discovery in civil litigation while representing Bethel’s

opposing party. These are paradigmatic functions of an attorney representing a client in litigation.

Bethel nevertheless contends that Quilling’s conduct—criminal destruction of personal

property—is not the type of conduct that is part of client representation. This certainly could be true

in some circumstances. For instance, if an attorney destroyed a non-client’s property that was

PAGE 10

unrelated to litigation, then that conduct likely would not involve “the provision of legal services,”

and the attorney would not be entitled to immunity. See Cantey Hanger, 467 S.W.3d at 482.

Immunity also may not protect the intentional destruction of evidence—for instance, if Quilling had

simply taken a sledgehammer to the brakes. Such actions do not involve the provision of legal

services and therefore cannot fall within the scope of client representation. See id. Here, however,

Quilling acted in conjunction with its experts to examine and test key evidence in the underlying

suit. It may well be, as Bethel alleges, that Quilling’s actions resulted in the destruction of evidence.

But again, for civil-immunity purposes, our analysis looks to the type of conduct, not whether that

conduct was wrongful. Youngkin, 546 S.W.3d at 681. Because Quilling’s allegedly wrongful

conduct involved the provision of legal services—specifically, examining and testing relevant

evidence—that conduct is protected by attorney immunity.

Based on the facts alleged in Bethel’s petition, the courts below correctly concluded that

attorney immunity shields Quilling from civil suit by a third party, whom Quilling did not represent,

for conduct connected to Quilling’s representation of its client in litigation. Accordingly, the

judgment of the court of appeals is affirmed.

________________________________________

John P. Devine

Justice

OPINION DELIVERED: February 21, 2020

11

Fifth Circuit Erie Too: Civil Immunity for Criminal Conduct for Texas Attorneys 

18-0595 CHERLYN BETHEL, INDIVIDUALLY, AND AS THE REPRESENTATIVE OF THE ESTATE OF RONALD J. BETHEL, DECEASED v. QUILLING, SELANDER, LOWNDS, WINSLETT & MOSER, P.C., AND JAMES H. MOODY, III; from Dallas County; 5th Court of Appeals District (05-17-00850-CV, 581 SW3d 306, 05-30-18).

The Court affirms the court of appeals' judgment.  

581 S.W.3d 306 (2018)

Cherlyn BETHEL, Individually and as the representative of the Estate of Ronald J. Bethel, Deceased, Appellant
v.
QUILLING, SELANDER, LOWNDS, WINSLETT & MOSER, P.C., and James H. Moody, III, Appellees

No. 05-17-00850-CV.

Court of Appeals of Texas, Dallas.

Opinion Filed May 30, 2018.    

On Appeal from the 116th Judicial District Court, Dallas County, Texas, Trial Court Cause No. DC-17-03487.

Affirmed.

Morgan McPheeters, Frederick Leighton Durham, Jessica Foster, Thad D. Spalding, Kelly, Durham & Pittard, LLP, Andrew Galen Counts, E. Todd Tracy, Stewart Donavan Matthews, The Tracy Law Firm, Dallas, TX, for Cherlyn Bethel, Individually and as the Representative of the Estate of Ronald J. Bethel, Deceased.

Marcie L. Schout, Quilling, Selander, Lownds, Winslett & Moser, P.C., Dallas, TX, for Quilling, Selander, Lownds, Winslett & Moser, P.D.

Before Justices Francis, Fillmore, and Whitehill.

308*308 MEMORANDUM OPINION

Opinion by Justice Francis. 

Cherlyn Bethel, individually and as the representative of the Estate of Ronald J. Bethel, sued opposing counsel for conduct involving an expert inspection of a trailer brake assembly that is the focus of a separate wrongful death action. Appellees Quilling, Selander, Lownds, Winslett & Moser, P.C., and James H. Moody, III, filed a motion to dismiss under Texas Rule of Civil Procedure 91a, asserting the affirmative defense of attorney immunity. The trial court granted the motion, dismissed Bethel's suit, and awarded attorney's fees to appellees. In two issues, Bethel challenges the ruling on appeal. We affirm.

Bethel's petition in this suit alleged the following: Bethel's husband, Ron, died following an accident that Bethel contends was caused by defective brakes in the trailer he was towing. Bethel sued the manufacturer of the trailer, and appellees represent the manufacturer in the wrongful death suit. According to Bethel, during the course of that litigation, appellees or their experts, with appellees' "knowledge and at their direction and supervision," disassembled the brakes and destroyed their condition. Bethel filed this lawsuit against appellees and their experts, alleging fraud, tortious interference with a contract, spoliation of evidence, "conspiracy to deny [Bethel] the pursuit of justice," trespass to chattel, conversion, negligence, and gross negligence. She sought damages for the destruction of the evidence.

Appellees filed a motion to dismiss the lawsuit, arguing there was no basis in law or fact because the claims were barred by attorney immunity. Bethel responded to the motion, arguing appellees' conduct constituted 309*309 criminal destruction of property, and Texas law is unresolved as to whether the attorney immunity doctrine applies to criminal conduct. In addition, Bethel amended her petition to add nine paragraphs addressing whether the attorney immunity doctrine applied.

The trial court granted the motion, dismissed Bethel's claims with prejudice, and awarded appellees $7,480 in attorney's fees as well as contingent appellate attorney's fees. After Bethel nonsuited her claims against the engineers and their firms, she appealed the trial court's order dismissing her claims against appellees.

Under rule 91a, a party may move to dismiss a cause of action on the grounds it has no basis in law or fact. TEX. R. CIV. P. 91a.1. "A cause of action has no basis in law if the allegations, taken as true, together with the inferences reasonably drawn from them, do not entitle the claimant to the relief sought." Id. In ruling on a 91a motion, the trial court may not consider evidence and must decide the motion "solely on the pleading of the cause of action, together with any pleading exhibits permitted by Rule 59." TEX. R. CIV. P. 91a.6; Highland Capital Mgmt., LP v. Looper Reed & McGraw, P.C., No. 05-15-00055-CV, 2016 WL 164528, at *4 (Tex. App.-Dallas Jan. 14, 2016, pet. denied) (mem. op.). Whether a cause of action has any basis in law is a legal question we review de novo. See City of Dallas v. Sanchez, 494 S.W.3d 722, 724 (Tex. 2016) (per curiam). We base our review on the allegations in the live petition and any attachments, and we accept as true the factual allegations. Wooley v. Schaffer, 447 S.W.3d 71, 76 (Tex. App.-Houston [14th] 2014, pet. denied).

In her first issue, Bethel asserts the plain language of rule 91a limits the scope of a court's review to the plaintiff's pleading. Because an affirmative defense is not part of a plaintiff's pleading, she argues, it cannot serve as a basis for dismissal. Consequently, she concludes, the trial court erred by granting appellees' motion on the basis of the affirmative defense of attorney immunity.

Initially, we note that Bethel did not present this particular issue to the trial court in her response to the motion to dismiss; rather, her response argued only that appellees' conduct constituted a crime for which attorney immunity should not apply. Preservation of error reflects important prudential considerations recognizing that the judicial process benefits greatly when trial courts have the opportunity to first consider and rule on error. Burbage v. Burbage, 447 S.W.3d 249, 258 (Tex. 2014). Affording courts this opportunity conserves judicial resources and promotes fairness by ensuring that a party does not neglect a complaint at trial and raise it for the first time on appeal. Id. Because Bethel did not present this issue to the trial court below, we conclude it is waived.

But even assuming this issue is properly before us,^[1] Bethel acknowledges this Court, as well as others, have upheld rule 91a dismissals on the basis of affirmative defenses. See Highland Capital, 2016 WL 164528, at *4-6 (attorney immunity); Galan Family Tr. v. State, No. 03-15-00816-CV, 2017 WL 744250, at *3 (Tex. App.-Austin Feb. 24, 2017, pet. denied) (mem. op.) (statute of limitations); Guzder v. Haynes & Boone, LLP, No. 01-13-00985-CV, 2015 WL 3423731, at *7 (Tex. App.- 310*310 Houston [1st Dist.] May 28, 2015, no pet.) (mem. op.) (attorney immunity); GoDaddy.com, LLC v. Toups, 429 S.W.3d 752, 754-55 (Tex. App.-Beaumont 2014, pet. denied) (immunity from suit under the Communications Decency Act). Nevertheless, she argues these cases apply a "mistaken interpretation" of the rule and urges us to follow Bedford Internet Office Space, LLC v. Texas Insurance Group, Inc., 537 S.W.3d 717 (Tex. App.-Fort Worth 2017, pet. filed). There, the Fort Worth court concluded the plain language of the rule required trial courts to "wear blinders to any pleadings except the pleading of the cause of action'" and determined the court erred by dismissing claims on the basis of the statute of limitations, which would require the court to look beyond the plaintiff's pleadings and review the defendant's pleadings. 537 S.W.3d at 720. We decline Bethel's invitation for two reasons.

First, as stated above, this Court previously applied rule 91a to the affirmative defense of attorney immunity. See Highland Capital, 2016 WL 164528, at *4-6. In Highland Capital, we considered the plaintiff's pleadings and concluded that, meritorious or not, the type of conduct alleged fell squarely within the scope of the law firm's representation of its client. 2016 WL 164528, at *4. We therefore concluded the trial court did not err in granting the law firm's rule 91a motion to dismiss the non-client's claims for theft, breach of the duty of confidentiality, conversion, tortious interference with contract, and civil conspiracy to commit theft, extortion, slander, and disparagement based on attorney immunity. Id.

Second, the rationale underpinning Bethel's argument and the Bedford Internet case is that rule 91a limits a court's consideration to the plaintiff's pleading of the cause of action. Even if we were to assume the correctness of this argument, Bethel's live pleading included nine paragraphs on why attorney immunity does not shield appellees from her suit. In particular, she alleged she owned the trailer and its component parts; appellees knew she owned them and that they were critical to her claim against the manufacturer; appellees did not obtain her consent to conduct destructive testing; she did not consent to such testing; and appellees "intentionally and knowingly directed the destructive disassembly, testing, and examination of the trailer brakes." She alleged appellees were "seasoned veterans" who were familiar with the standards governing forensic engineering and product liability litigation and were aware "with reasonable certainty" that the disassembly, testing, and examination of the trailer brakes would damage or destroy the brakes. Finally, Bethel alleged appellees' acts and omissions constituted criminal tampering with evidence, given they were aware she had filed a civil lawsuit against the trailer's manufacturer and they altered or destroyed the brakes with the intent to impair the "verity, legibility, or availability of the trailer brakes as evidence" in the suit. Because these allegations are contained in Bethel's live pleading, the trial court would not have needed to look beyond Bethel's petition to consider the issue of attorney immunity. We overrule the first issue.

In her second issue, Bethel argues appellees cannot establish attorney immunity solely from the facts alleged on the face of her petition. She contends Texas law does not shield an attorney from the consequence of "illegal conduct." More specifically, she acknowledges that appellees' investigation of the trailer brakes would ordinarily fall within an attorney's role in representing his client, but appellees' actions "went far beyond obtaining, retaining, reviewing, or analyzing evidence." She argues appellees conducted 311*311 destructive testing they knew was reasonably certain to cause this result and proceeded even though they knew they had no consent from her and destroyed property owned by her. She equates appellees' actions with conduct that is clearly "foreign to the duties of an attorney," such as assaulting opposing counsel in trial. We cannot agree.

We begin with the Supreme Court's decision in Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477 (Tex. 2015), which controls our analysis of attorney immunity. See Youngkin v. Hines, 546 S.W.3d 675, 681-82 (Tex. 2018). In Cantey Hanger, the Texas Supreme Court explained the attorney immunity defense is intended to ensure "loyal, faithful, and aggressive representation by attorney's employed as advocates." Cantey Hanger, 467 S.W.3d at 481 (quoting Mitchell v. Chapman, 10 S.W.3d 810, 812 (Tex. App.-Dallas 2000, pet. denied)). An attorney is immune from liability to non-clients for conduct within the scope of his representation of his clients. Youngkin, 546 S.W.3d at 681-82; Cantey Hanger, 467 S.W.3d at 481. In other words, an attorney may be liable to non-clients only for conduct outside the scope of his representation of his client or for conduct foreign to the duties of a lawyer. Youngkin, 546 S.W.3d at 681-82; Cantey Hanger, 467 S.W.3d at 482.

In determining the immunity issue, the inquiry focuses on the kind of conduct at issue rather than the alleged wrongfulness of said conduct. Youngkin, 546 S.W.3d at 681-82; Cantey Hanger, 467 S.W.3d at 482. Even conduct that is "wrongful in the context of the underlying suit" is not actionable if it is "part of the discharge of the lawyer's duties in representing his or her client." Cantey Hanger, 467 S.W.3d at 481. Thus, a plaintiff's characterization of a firm's conduct as fraudulent or otherwise wrong is immaterial to our evaluation of the immunity defense. Youngkin, 546 S.W.3d at 681-82; If an attorney proves his conduct is "part of the discharge of the duties to his client," immunity applies. Cantey Hanger, 467 S.W.3d at 484; Highland Capital, 2016 WL 164528, at *3.

At the same time, attorneys "are not protected from liability to non-clients for their actions when they do not qualify as `the kind of conduct in which an attorney engages when discharging his duties to his client.'" Cantey Hanger, 467 S.W.3d at 482 (quoting Dixon Fin. Servs. v. Greenberg, Peden, Siegmyer & Oshman, P.C., No. 01-06-00696-CV, 2008 WL 746548, at *9 (Tex. App.-Houston [1st] Mar. 20, 2008, pet. denied)) (mem. op. on reh'g). Examples of attorney conduct that would not be protected include participating in a fraudulent business scheme with a client, knowingly assisting a client with a fraudulent transfer to avoid paying a judgment, theft of goods or services on a client's behalf, and assaulting opposing counsel during trial. Youngkin, 546 S.W.3d at 682-83; Cantey Hanger, 467 S.W.3d at 482-83.

Here, Bethel's third amended petition alleged appellees permitted or conducted the destruction of key components of the trailer's brakes by permitting, directing, or taking the following action or inaction:

a. Disassembly of the brakes, which was destructive in nature and by itself. Essentially everything about the brakes has changed because of the inspection.

b. Failed to establish any testing/inspection protocol at the time of the disassembly.

c. Failed to video document the brake disassembly being done, despite the fact that video cameras were present (videos of the brake operation were done by [engineer] Kelly Adamson).

312*312 d. Manipulation of the adjuster screw for each brake to facilitate drum removal. The original condition and position of the adjuster screws now cannot be known.

Bethel alleged appellees (1) failed to notify her or her counsel of their intent to do a destructive examination and did not have an agreed-upon protocol; (2) intended to cause the disassembly and destruction of the brakes; and (3) altered or destroyed the trailer brakes with the intent to "impair the verity, legibility, or availability" of the trailer brakes as evidence in the pending action against the manufacturer. Bethel asserted that because she was not given notice of the inspection, she did not have an agent present.

Bethel's allegations focus on how the inspection was conducted and contend appellees' actions were criminal. She asserts that "intentionally destroying property belonging to another and willfully concealing from Texas courts evidence crucial to resolving claims" fall outside the immunity doctrine. But merely labeling an attorney's conduct wrongful does not and should not remove it from the scope of representation or render it `foreign to the duties of a lawyer. Id. As the court said in Cantey Hanger, other mechanisms are in place to discourage and remedy such conduct, such as sanctions, contempt, and attorney disciplinary proceedings. Id. at 482.

Focusing on the type of conduct alleged here — and not the nature of the conduct — we conclude these alleged acts do not constitute conduct "foreign to the duties of an attorney" in representing a client. The complained-of actions involve the investigation of the trailer brakes, and more specifically the scheduling of the inspection, the planning of and participation in the expert inspection, and the testing and examination of those brakes, in a wrongful death action. These are the types of action taken to facilitate the rendition of legal services to a client in such a case. This case simply does not rise to the level of those examples of misconduct cited in Cantey Hanger that fall outside the immunity doctrine. See Cantey Hanger, 467 S.W.3d at 482.

We find support for our conclusion in this Court's previous opinion in Highland Capital. There, the plaintiff also argued the law firm's actions were criminal. Highland sued opposing counsel alleging the client-employee stole documents containing confidential and privileged information and the law firm then tried to "extort Highland" through a "series of criminal acts" with respect to the documents. Highland Capital, 2016 WL 164528, at *1. Highland alleged the law firm reviewed, copied, and analyzed information it knew to be stolen and proprietary in furtherance of its scheme to extort, slander, and disparage Highland; threatened to disclose the information and disparage Highland if a monetary sum was not paid; refused to return or stop using the information after receiving written notice of the nature of the stolen materials; lied to Highland's counsel about the scope of the theft and stolen material in the firm's possession; and knowingly and actively facilitated the employee's wrongful disclosure of the information and then lied to Highland and the court regarding the extent to counsel's involvement. Id. Highland characterized the law firm's actions as "criminal, tortious, and malicious." Id. at *6.

This Court, however, looked at the actions taken by the law firm — acquiring documents from a client that were the subject of litigation against the client; reviewing, copying, retaining and analyzing the documents; making demands on the client's behalf; advising a client on a course of action; and threatening to disclose the documents if demands were not met — and 313*313 concluded they were the "kinds of actions" that were part of an attorney's duties in representing a client in "hard-fought litigation." Id.

As in Highland Capital, we conclude the type of conduct alleged by Bethel falls within the scope of appellees' representation of the manufacturer of the trailer. Accepting Bethel's factual allegations as true, appellees' conduct "involves acts or omissions undertaken as part of the discharge of the attorney's duties as counsel to an opposing party." See id. We therefore conclude the trial court did not err by granting appellees' rule 91a motion to dismiss Bethel's claims. We overrule the second issue.

We affirm the trial court's order.

[1] Courts may not consider issues that were not raised in the courts below, but parties are free to construct new arguments in support of issues properly before the court. Miller v. JSC Lake Highlands Ops., LP, 536 S.W.3d 510, 513 n.5 (Tex. 2017). Thus, to the extent Bethel's assertion is an argument as opposed to an issue, we address it.

LEGAL CITATION FOR DALLAS COURT OF APPEALS ATTORNEY IMMUNITY RULING:  Bethel v. Quilling, Selander, Lownds, Winslett & Moser P.C., No. 05-17-00850-CV, 2018 WL 2434410 (Tex. App.-Dallas May 30, 2018, pet. granted) (mem. op.)

RELATED LEGAL ETHICS ARTICLE: 

Steinberg, Marc I. and Weissler, Logan, The Litigation Privilege as a Shelter for Miscreant Legal Counsel (2018). Oregon Law Review, Vol. 97, No. 1, 2018; SMU Dedman School of Law Legal Studies Research Paper No. 390. Available at SSRN: https://ssrn.com/abstract=3194765