I have been lead counsel on a lot of appeals. I have argued before the courts of appeals from Houston to El Paso to Amarillo, the Texas Supreme Court, the Texas Court of Criminal Appeals, and the U.S. Fifth Circuit. I have handled appeals to the U.S. Supreme Court, although none were accepted. I think I am the most proud of the decision I received earlier this year from the Houston Fourteenth Court of Appeals.
Click here to read the majority opinion in Tolbert v. Terisa Taylor, which involves a father, Mr. Broome, and a mother, Ms. Robbins, involved in a child custody modification case before then Judge Sheri Dean. Terisa Taylor was Mr. Broome's lawyer. The opinion sets forth these facts:
The Robbins Parties assert that attorney-immunity does not apply to the conduct alleged in this case—alleged criminal conduct by Taylor in violation of the Texas Wiretap Statute and the Federal Wiretap Statute—because criminal conduct is “foreign to the duties of an attorney.”
In Plaintiffs’ First Amended Original Petition, the Robbins Parties allege the following facts regarding Taylor’s conduct:
• Between July 18, 2013, and January 11, 2014, the sister-in-law of Robbins’s ex-husband, Fiona McInally, received on her iPad text and email messages between Robbins and others.
• Plaintiffs’ confidential and personal communications were intercepted without the Plaintiffs’ knowledge or consent.
• Broome connected to his sister-in-law’s iPad and received Robbins’s communications.
• Broome shared the messages with his lawyer, Taylor.
• Taylor produced to Robbins’s attorney in the Modification Proceeding (“Robbins’s Attorney”) a compact disc containing data from this iPad showing that the iPad’s email settings had been changed to use Robbins’s personal email address and password as the “setting for incoming e-mails.”
• Robbins did not know that her text messages and emails were being intercepted until Taylor produced 617 pages of the Robbins Parties’ text messages to Robbins’s Attorney and told the attorney that Taylor and Broome were in possession of everything Robbins had communicated to others, including a nude photograph of Robbins that Robbins had sent to her boyfriend by text message.
• Taylor told Robbins’s Attorney that Taylor intended to use the photograph of Robbins’s breasts as demonstrative evidence in the jury trial and that Taylor would show the jury a poster-size photo of Robbins’s breasts.
• Taylor told Robbins’s Attorney to advise Robbins to sign an agreed order resolving the Modification Proceeding and agreeing that the only visitation Robbins would have with her daughter would be supervised visitation, otherwise this evidence would be used against Robbins.
• After Robbins refused to sign Taylor’s proposed order, Taylor filed a document in the Modification Proceeding entitled “Notice of Intent to Use Demonstrative Evidence,” in which Taylor, on behalf of Broome, stated that Broome intended to use at trial a “Power Point presentation and large photo board.”
• During the six months before February 5, 2014, Taylor had used information gleaned from illegally intercepted communications in the Modification Proceeding in several hearings and to conduct discovery.
• Broome disclosed the contents of Robbins’s intercepted electronic communications to Taylor, who used and disclosed these contents to the trial court in the Modification Proceeding and in the pleadings in the Modification Proceeding.
• Taylor or Broome provided the iPad to Pathway for examination.
• Broome obtained a court order “through his attorneys’ use of illegally intercepted communications on [the iPad].”
Attorney Terisa Taylor was sued for violating Texas Code of Criminal Procedure Sec. 18.20(16) and the Federal Wiretap Act. Taylor obtained a summary judgment from Judge Sheri Dean based on the doctrine of attorney immunity. The Court of Appeals agreed with me and held that lawyers are not immune from civil liability if they violate a criminal statute:
Attorney immunity is an affirmative defense that protects attorneys from liability to nonclients. The purpose of the attorney-immunity defense is to ensure loyal, faithful, and aggressive advocacy to clients. To be entitled to summary judgment, Taylor must prove that there is no genuine issue of material fact as to whether her conduct was protected by attorney immunity and that she is entitled to judgment as a matter of law.
The Texas Supreme Court recently affirmed that Cantey Hanger [Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015)] controls our analysis of attorney immunity. Youngkin v. Hines, 546 S.W.3d 675, 681–82 (Tex. 2018). The Youngkin court recognized the breadth of the attorney-immunity doctrine yet made clear that the doctrine is not without limits. The Cantey Hanger opinion identified the following “nonexhaustive examples that may fall outside the reach of the attorney-immunity defense”: participation in a fraudulent business scheme with a client, knowingly helping 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. All of these examples appear to refer to either non-litigation conduct or conduct not alleged to be fraudulent; thus, none of these examples appear to include fraudulent conduct while representing a client in litigation. The Youngkin court states that these examples are “nonexhaustive,” yet, as in Cantey Hanger, the supreme court did not articulate a legal standard for determining if conduct is not covered by the attorney-immunity doctrine. After listing the nonexhaustive examples, the Youngkin court ends by saying, “[t]hus, while we recognize that some fraudulent conduct, even if done on behalf of a client, may be actionable, [the plaintiff] does not allege any such behavior.” Simply put, the Youngkin court appears to have concluded that attorney immunity applied because the alleged conduct fell within the scope of the attorney’s representation of the client and did not fall within any of the examples listed in the Cantey Hanger opinion.
....
The Robbins Parties assert that attorney-immunity does not apply to the conduct alleged in this case—alleged criminal conduct by Taylor in violation of the Texas Wiretap Statute and the Federal Wiretap Statute—because criminal conduct is “foreign to the duties of an attorney.”
....
Taylor, instead, filed a traditional summary judgment relying solely on the affirmative defense of attorney-immunity. Taylor neither contested the facts pled nor did she provide any evidence or affidavits in support of her motion for summary judgment. Presuming that all facts alleged by the Robbins Parties are true and indulging all reasonable inferences in the light most favorable to the Robbins Parties, the Robbins Parties allege sufficient facts demonstrating alleged criminal conduct by Taylor in violation of the Texas Wiretap Statute and the Federal Wiretap Statute. Neither Youngkin nor Cantey Hanger involved alleged criminal conduct by an attorney. And, the Texas Supreme Court did not extend attorney-immunity to criminal conduct in either case.
A criminal violation of either statute would be “foreign to the duties of an attorney” and thus precludes application of attorney-immunity. We conclude the trial court erred in granting Taylor’s motion for summary judgment based on the affirmative defense of attorney-immunity.
(citations are omitted from the above quote).
Ironically, Terisa Taylor’s co-counsel in the Robbins child custody modification case, the notoriously ethical Ricardo Ramos, wrote a State Bar CLE article entitled “Operation Information Interception: When It’s Legal and When It’s Not” (36th Annual Marriage Dissolution Institute April 2013), and his paper said in part:
DON'T: Take possession of illegally obtained material. If you have it in your possession, read it or listen to it, you may be committing a crime by using it in the preparation of your case.
DO: Advise your clients on the law of intercepting email and other forms of communication. The best policy is to advise your clients NOT to access their spouse's email accounts at all, even if they think they have consent to do so.
DON'T: Represent a person who has illegally obtained electronic material. Period. It is not worth the risk.
....
DON'T: If you have illegally obtained discovery in your possession, don't produce it in discovery without the advice of a criminal defense attorney.
This article by Mr. Ramos, who has had his own share of legal problems personally, uses identical language from an earlier blog post from the Austin law firm Noelke English Maples St. Leger Blair, LLP.
Click here to read an article I wrote on illegally obtained electronic evidence.
Terisa Taylor was not charged criminally for her conduct in the Robbins case and she apparently will try to appeal this decision to the Texas Supreme Court. Click here to read the dissenting opinion in this case, which I am sure she agrees with. Ms. Taylor denied she had done anything wrong before Judge Dean and she contended that the electronic evidence had not been illegally obtained.
Click here to read my brief in this case and click here to read Terisa Taylor's brief that provides her argument that she is immune from my civil suit.
The moral of this story for all family law attorneys is to be very careful about allowing your client to provide you electronic evidence (recordings, text messages, e-mails or computer files) which might have been obtained illegally. Do not use any such questionable evidence in your case unless you are very sure it was obtained properly by your client.
