Terisa Taylor v. Carl Tolbert, Nizzera Kimball and Vivian Robbins

Supreme Court of Texas

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No. 20-0727

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Terisa Taylor,

Petitioner,

v.

Carl Tolbert, Nizzera Kimball and Vivian Robbins,

Respondents

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On Petition for Review from the

Court of Appeals for the Fourteenth District of Texas

═══════════════════════════════════════

Argued February 1, 2022

JUSTICE DEVINE delivered the opinion of the Court.

Under Texas law, attorneys are generally immune from civil

liability to nonclients for actions taken within the scope of legal

representation if those actions involve “the kind of conduct” attorneys

engage in when discharging their professional duties to a client. 1 In

recent years, we have had several occasions to consider the scope of this

common-law immunity defense. When presented with the question, we

1 See Landry’s, Inc. v. Animal Legal Def. Fund, 631 S.W.3d 40, 51 (Tex.

2021); Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 482 (Tex. 2015).

have held that the immunity inquiry focuses on the function and role

the lawyer was performing, not the alleged wrongfulness, or even

asserted criminality, of the lawyer’s conduct. 2 The nuance presented

here is whether an exception exists for private-party civil suits asserting

that a lawyer has engaged in conduct criminalized by statute.

We hold that, when conduct is prohibited by statute, the

attorney-immunity defense is neither categorically inapplicable nor

automatically available, even if the defense might otherwise cover the

conduct at issue. In such cases, whether an attorney may claim the

privilege depends on the particular statute in question. That being so,

the attorney in this case is only entitled to partial immunity on civil

claims alleging she violated state and federal wiretap statutes by “using”

and “disclosing” electronic communications illegally “intercepted” by her

client and others. Immunity attaches to the state claims because the

Texas wiretap statute does not expressly, or by necessary implication,

abrogate the immunity defense, and the attorney met her burden to

establish its applicability to the conduct at issue. But immunity does

not attach to the federal claims because the federal wiretap statute is

worded differently, and informative federal authority (sparse as it is)

persuades us that federal courts would not apply Texas’s common-law

attorney-immunity defense to a claim under that statute. We thus

affirm the court of appeals’ judgment that the attorney-immunity

defense is inapplicable to the federal wiretap claims but reverse and

render judgment for the attorney on the state wiretap claims.

2Bethel v. Quilling, Selander, Lownds, Winslett & Moser, P.C., 595

S.W.3d 657-58 (Tex. 2020); Youngkin v. Hines, 546 S.W.3d 675, 681 (Tex. 2018);

Cantey Hanger, 467 S.W.3d at 481 & 485.

2

I. Background

The underlying dispute originates from a child-custody

modification proceeding between Mark Broome and Vivian Robbins

regarding their child, N.B. Attorney Terisa Taylor represented Broome

in the highly acrimonious family-law case.

In the midst of the modification proceeding, 3 N.B. visited her

aunt, Fiona McInally, in the summer of 2013. At some point, an iPad

belonging to McInally began receiving text messages and emails

between Robbins and at least thirty other individuals, all of whom were

unaware this was happening and none of whom consented. How this

happened remains something of a mystery, but there appears to be no

dispute that N.B. had signed into her aunt’s iPad using Robbins’s email

address and password to download an app. After discovering the text

messages, McInally or her husband (Broome’s brother) mailed the iPad

to Broome, who obtained Robbins’s text messages and emails from the

iPad and shared them with Taylor for use in the modification

proceeding.

Robbins and several of her interlocutors, including Carl Tolbert

and Nizzera Kimball, 4 sued Taylor and others for violating the federal

and Texas wiretap statutes. 5 Wiretapping is a criminal offense under

3Although the allegations in this civil suit are disputed, the applicable

standard of review requires us to accept the allegations as true. City of

Magnolia 4A Econ. Dev. Corp. v. Smedley, 533 S.W.3d 297, 301 (Tex. 2017).

We relay them accordingly.

4 The other plaintiffs are not parties to this appeal.

5The other defendants, including Broome, have since settled, leaving

Taylor the sole remaining defendant.

3

federal and state law, 6 but both statutory schemes permit private

parties to pursue civil redress for violations of the penal statutes. 7 The

federal statute provides a civil cause of action for “any person whose

wire, oral, or electronic communication is intercepted, disclosed, or

intentionally used in violation of this chapter[.]” 8 Texas likewise grants

a private right of action for “[a] person whose wire, oral, or electronic

communication is intercepted, disclosed, or used in violation of” certain

statutes, including Chapter 16 of the Penal Code and Chapter 18A of the

Code of Criminal Procedure. 9 Robbins, Tolbert, and Kimball

(collectively, Robbins) alleged that Taylor had improperly “used” and

“disclosed” illegally “intercepted” electronic communications in the

following particulars:

• received the text messages and emails her client, Broome,

shared with her;

• produced a CD containing data from the iPad to Robbins’s

attorney;

• told opposing counsel that “she and her client were in

possession of everything Ms. Robbins had communicated to

others, including a nude photograph that Ms. Robbins had

sent via text message to her boyfriend”;

• told opposing counsel that she intended to use the nude

photograph as a poster-size demonstrative in the jury trial;

6 18 U.S.C. § 2511(1); TEX. PENAL CODE § 16.02.

7 18 U.S.C. § 2520(a); TEX. CODE CRIM. PROC. art. 18A.502.

8 18 U.S.C. § 2520(a).

9 TEX. CODE CRIM. PROC. art. 18A.502(1). Chapter 18A and Chapter 16

of the Penal Code prohibit wiretapping.

4

• told opposing counsel to advise Robbins to “sign an agreed

order resolving the custody case and agreeing to supervised

visitation only or this evidence would be used against her”;

• “filed an unusual pleading entitled ‘Notice of Intent to Use

Demonstrative Evidence’[,] which said that Mark Broome

intended to use . . . [a] ‘Power Point presentation and large

photo board’” at trial;

• for at least six months, “used information gleaned from the

illegally intercepted communications in several family

court hearings and to conduct discovery in the child

custody modification case . . . prior to Ms. Robbins

becoming aware of the interception,” which she learned

about when Taylor produced 617 pages of Robbins’s text

messages to her attorney and when Broome filed a pleading

referencing the content of Robbins’s email messages;

• “[repeatedly] used and disclosed the contents of those

intercepted electronic communications to the court and in

[] pleadings in the modification case”;

• “provided Fiona McInaly’s [sic] iPad to Pathway Forensics,

LLC for examination”; 10 and

• used the illegally intercepted communications on

McInally’s iPad to obtain a court order authorizing

Pathway Forensics to make a copy of Robbins’s electronic

devices. 11

10Pathway Forensics is a computer forensics company that Broome had

retained as an expert witness. Robbins sued Pathway, and the court of appeals

ruled favorably to Robbins on those claims, but Pathway did not file a petition

for review in this Court. Taylor and Robbins report that the claims against

Pathway have been settled.

11 The trial court ordered Pathway to “properly and noninvasively

create backup images of all drives and media in the custody of [Robbins], via

her I-phone/cell phones [sic], I-Pad [sic], Laptop and/or home computer, that

5

Notably, the petition does not allege any facts suggesting that Taylor

played a role in the alleged “interception” of Robbins’s electronic

communications or that she advised Broome or others to take these

actions. Rather, the factual allegations against Taylor are limited to her

“use” and “disclosure” of those communications in the modification

proceeding.

Taylor moved for traditional summary judgment solely on the

pleadings, arguing she is immune from liability as a matter of law

because the plaintiffs’ claims all stem from her role as an attorney in the

modification proceeding. 12 The trial court agreed and rendered a

take-nothing summary judgment for Taylor.

In a split decision, the court of appeals reversed and remanded. 13

After noting that our attorney-immunity decisions in Cantey Hanger,

LLP v. Byrd 14 and Youngkin v. Hines 15 neither “involved alleged

criminal conduct by an attorney” nor extended attorney immunity to

criminal conduct, the majority summarily determined that “[a] criminal

violation of either [the federal or state wiretap] statute would be ‘foreign

to the duties of an attorney’ and thus precludes application of

attorney[]immunity.” 16

may contain electronic data relevant to the issues in this matter, except any

attorney client privilege matters.”

12 See TEX. R. CIV. P. 166a(c).

13 629 S.W.3d 318, 327, 334 (Tex. App.—Houston [14th Dist.] 2020).

14 467 S.W.3d 477 (Tex. 2015).

15 546 S.W.3d 675 (Tex. 2018).

16 629 S.W.3d at 327.

6

Examining our attorney-immunity precedent in more detail, the

dissent found the majority’s holding to be directly adverse to Bethel v.

Quilling, Selander, Lownds, Winslett & Moser, P.C., 17 in which we

rejected the invitation to create a “criminal conduct” exception to the

attorney-immunity defense and applied the defense to litigation conduct

alleged to be criminal in nature. 18 The dissent then cited two

independent reasons to affirm summary judgment for Taylor. First, the

dissent declared Robbins’s petition fatally deficient in failing to plead

facts showing Taylor had engaged in conduct violating the wiretap

statutes. 19 As to that matter, the dissent noted the absence of factual

allegations showing (1) “contemporaneous acquisition of the

communication when it was sent,” as required to establish an

“interception,” and (2) that Taylor knew, should have known, or was

reckless in disregarding that the communications had been

“intercepted,” as required to make “use” or “disclosure” of “intercepted”

communications impermissible. 20 Second, even if Robbins had pleaded

sufficient facts to state a claim under the wiretap statutes, Taylor’s

alleged conduct fell directly within the scope of her representation of

Broome in the modification proceeding and was not “foreign to the duties

17 595 S.W.3d 651 (Tex. 2020).

18 629 S.W.3d at 339-40 (Frost, C.J., dissenting).

19 Id. at 345. Taylor did not argue or brief that issue here or in the

courts below, so we do not address it.

20Id. at 341-45 & nn.64-78; see, e.g., Babb v. Eagleton, 616 F. Supp. 2d

1195, 1206 (N.D. Okla. 2007) (“[I]f no unlawful interception initially occurred,

there can be no liability for subsequent use or disclosure of the interceptions

by Attorney and Law Firm.”).

7

of an attorney.” 21 Applying Bethel, which the majority failed to discuss

or cite, the dissent concluded that, as a matter of law, attorney immunity

protects Taylor from civil liability because the conduct about which

Robbins complains involved Taylor’s rendition of legal services to a

client in the course of litigation. 22

We granted Taylor’s petition for review to further refine the

boundaries of the attorney-immunity defense. The principal matter in

dispute is whether the immunity defense applies to alleged conduct that,

if proven, is criminalized by statute.

II. Discussion

As the summary-judgment movant on an affirmative defense,

Taylor bears the burden of conclusively establishing that attorney

immunity bars the plaintiffs’ recovery on the claims asserted. 23 “The

only facts required to support an attorney-immunity defense are the

type of conduct at issue and the existence of an attorney–client

relationship at the time” the attorney engaged in the conduct. 24 We

must then decide “the legal question of whether said conduct was within

the scope of representation.” 25 Because Taylor moved for summary

judgment on the pleadings, we must take the allegations in Robbins’s

21 629 S.W.3d at 345 (Frost, C.J., dissenting).

22 Id. at 345-46.

23 Cantey Hanger, 467 S.W.3d at 481; Provident Life & Accident Ins. Co.

v. Knott, 128 S.W.3d 211, 215-16 (Tex. 2003).

24 Youngkin, 546 S.W.3d at 683.

25 Id.

8

petition as true, and we will uphold summary judgment for Taylor only

if she is entitled to judgment as a matter of law. 26

A. Scope of Attorney-Immunity Defense

The common-law attorney-immunity defense applies to lawyerly

work in “all adversarial contexts in which an attorney has a duty to

zealously and loyally represent a client” but only when the claim against

the attorney is based on “the kind of conduct” attorneys undertake while

discharging their professional duties to a client. 27 Stated inversely, if

an attorney engages in conduct that is not “lawyerly work” or is “entirely

foreign to the duties of a lawyer” or falls outside the scope of client

representation, the attorney-immunity defense is inapplicable. 28

In determining whether conduct is “the kind” immunity protects,

the inquiry focuses on the type of conduct at issue rather than the

alleged wrongfulness of that conduct. 29 But when the defense applies,

counsel is shielded only from liability in a civil suit, not from “other

mechanisms” that exist “to discourage and remedy” bad-faith or

wrongful conduct, including sanctions, professional discipline, or

criminal penalties, as appropriate. 30

26Perry v. S.N., 973 S.W.2d 301, 303 (Tex. 1998); see City of Magnolia

4A Econ. Dev. Corp., 533 S.W.3d at 301; TEX. R. CIV. P. 166a(c).

27 Haynes & Boone, LLP v. NFTD, LLC, 631 S.W.3d 65, 67 (Tex. 2021);

see, e.g., Landry’s, 631 S.W.3d at 47; Cantey Hanger, 467 S.W.3d at 481.

28 Landry’s, 631 S.W.3d at 47, 51-53; Youngkin, 546 S.W.3d at 681.

29 Landry’s, 631 S.W.3d at 47.

30E.g., Bethel, 595 S.W.3d at 657-58; Youngkin, 546 S.W.3d at 679,

682-83; Cantey Hanger, 467 S.W.3d at 482, 484-86; Kruegel v. Murphy, 126

S.W. 343, 344-45 (Tex. App.—Dallas 1910, writ ref’d).

9

Conduct is not the kind of conduct attorney immunity protects

“simply because attorneys often engage in that activity” or because an

attorney performed the activity on a client’s behalf. 31 Rather, the

conduct must involve “the uniquely lawyerly capacity” and the

attorney’s skills as an attorney. 32 For example, a lawyer who makes

publicity statements to the press and on social media on a client’s behalf

does “not partake of ‘the office, professional training, skill, and authority

of an attorney’” because “[a]nyone—including press agents,

spokespersons, or someone with no particular training or authority at

all—can publicize a client’s allegations to the media.” 33 Immunity

attaches only if the attorney is discharging “lawyerly” duties to his or

her client. 34

A corollary to this principle is that attorneys will not be entitled

to civil immunity for conduct that is “entirely foreign to the duties of an

attorney.” “Foreign to the duties” does not mean something a good

attorney should not do; it means that the attorney is acting outside his

or her capacity and function as an attorney. 35 For that reason, whether

31 Landry’s, 631 S.W.3d at 52.

32See id. at 51-53 (emphasis added) (quoting Cantey Hanger, 467

S.W.3d at 482).

33 Id. at 51-52 (quoting Cantey Hanger, 467 S.W.3d at 482).

34 Cantey Hanger, 467 S.W.3d at 481.

35 E.g., Youngkin, 546 S.W.3d at 681; Cantey Hanger, 467 S.W.3d at 482,

487; see Poole v. Hous. & T.C. Ry. Co., 58 Tex. 134, 137 (1882) (holding that an

attorney who had assumed ownership of a third party’s goods “with the

intention of consummating [a] fraud” on a third party “will not be heard to deny

his liability to [the third party] for the loss sustained by reason of his wrongful

acts, under the privileges of an attorney at law, for such acts are entirely

10

counsel may claim the privilege turns on the task that was being

performed, not whether the challenged conduct was meritorious.

This is so because the interests of clients demand that lawyers

“competently, diligently, and zealously represent their clients’ interests

while avoiding any conflicting obligations or duties to themselves or

others.” 36 To prevent chilling an attorney’s faithful discharge of this

duty, lawyers must be able to pursue legal rights they deem necessary

and proper for their clients without the menace of civil liability looming

over them and influencing their actions. 37 Attorney immunity furthers

“loyal, faithful, and aggressive representation” by

“essentially . . . removing the fear of personal liability,” 38 thus

“alleviating in the mind of [an] attorney any fear that he or she may be

sued by or held liable to a non-client for providing . . . zealous

representation.” 39 In this way, the defense protects not only attorneys

but also their clients, who can be assured that counsel is representing

the client’s best interests, not the lawyer’s.

foreign to the duties of an attorney”); Dixon Fin. Servs., Ltd. v. Greenberg,

Peden, Siegmyer & Oshman, P.C., No. 01–06–00696–CV, 2008 WL 746548, at

*9 (Tex. App.—Houston [1st Dist.] 2008, pet. denied) (“The signing and filing

of an application for a temporary restraining order to aid in the recovery of

monies owed to a client under an arbitration award is not conduct ‘foreign to

the duties of an attorney’ and is the kind of conduct protected from liability.”).

36 Haynes & Boone, 631 S.W.3d at 79.

37 See Cantey Hanger, 467 S.W.3d at 483.

38 Youngkin, 546 S.W.3d at 682.

39 Haynes & Boone, 631 S.W.3d at 79.

11

Because the wrongfulness of the attorney’s conduct is not the

focus of the immunity inquiry, 40 we held in Cantey Hanger that conduct

alleged to be fraudulent does not necessarily fall outside the scope of the

attorney-immunity defense. 41 We explained that a “general fraud

exception” would “significantly undercut” the purposes of the defense 42

by allowing lawyers to be sued for discharging their lawyerly duties if

the plaintiff characterizes the attorney’s conduct as fraudulent. 43 But

“[m]erely labeling an attorney’s conduct ‘fraudulent’ does not and should

not remove it from the scope of client representation or render it ‘foreign

to the duties of an attorney.’” 44

In Bethel, we extended this principle to allegations of criminal

conduct. There, the plaintiff had urged us “to recognize an exception” to

attorney immunity “whe[n] a third party alleges that an attorney

engaged in criminal conduct during the course of litigation.” 45 We again

rejected the invitation to adopt an exception or state a categorical rule

because doing so would allow plaintiffs to avoid the attorney-immunity

defense through artful pleading—“by merely alleging that an attorney’s

Id. at 78; Bethel, 595 S.W.3d at 658; Youngkin, 546 S.W.3d at 681;

40

Cantey Hanger, 467 S.W.3d at 481.

41 467 S.W.3d at 484-86.

42 Id. at 483.

43 Landry’s, 631 S.W.3d at 47 (quoting Cantey Hanger, 467 S.W.3d at

482).

Bethel, 595 S.W.3d at 657 (alteration in original) (quoting Cantey

44

Hanger, 467 S.W.3d at 483-84).

45 Id.

12

conduct was ‘criminal.’” 46 Like the fraud exception that Cantey Hanger

declined to embrace, Bethel eschews a categorical exception for criminal

conduct because such an exception would defeat the purposes of the

attorney-immunity defense. 47 Instead, we held that conduct alleged to

be criminal in nature “is not categorically excepted from the protections

of attorney civil immunity when the conduct alleged is connected with

representing a client in litigation.” 48 As we explained there, a lawyer

who is doing his or her job is not more susceptible to civil liability just

because a nonclient asserts that the lawyer’s actions are fraudulent,

wrongful, or even criminal. 49

Even so, we acknowledged then, as we do now, that “there is a

wide range of criminal conduct that is not within the ‘scope of client

representation’ and [is] therefore ‘foreign to the duties of an attorney.’” 50

But when that is the case, the circumstances do not give rise to an

“exception” to the immunity defense; rather, such conduct simply fails

to satisfy the requirements for invoking the defense in the first

instance. 51 As Bethel makes clear, our approach to applying the

46 Id.

47 Id.

48 Id. (citations omitted).

49 Id. (quoting Youngkin, 546 S.W.3d at 681).

50 Id. at 658.

51 Id.

13

attorney-immunity defense remains functional, not qualitative, and

leaves an attorney’s improper conduct addressable by public remedies. 52

Robbins nonetheless campaigns for a “narrow exception” to

immunity for civil liability that arises from a statute criminalizing

conduct. As Robbins notes, none of our precedent has involved similar

claims, and she contends that a common-law defense, like attorney

immunity, cannot be engrafted onto a statutory scheme unless the

statute expressly adopts the defense. Separately, and in addition,

Robbins asserts that Taylor’s alleged conduct was “foreign to the duties

of an attorney” because it is criminal in nature. We address these

arguments below.

B. Application to Taylor’s Conduct

We first consider whether Taylor’s conduct is encompassed by the

attorney-immunity defense at all. This is a legal question we determine

from the facts Robbins has alleged, which we take as true under the

applicable standard of review. 53 Focusing only on “the kind” of conduct,

as we must, the standard for attorney immunity is easily satisfied on

the pleaded allegations because Taylor’s conduct was (1) within the

52 While the potential for sanctions, professional discipline, and

criminal responsibility might be equally, if not more, concerning to an attorney

than the potential for civil liability, the public oversight required to pursue

such penalties helps ensure that attorneys discharging their duties are not

subject to the threat of litigation by anyone who might take issue with the

attorney’s performance on behalf of his or her client in the course and scope of

legal representation. If an attorney’s conduct in his or her capacity as an

attorney is wrongful, recourse is public, not private.

53 See supra n.3.

14

scope of her representation of Broome in the modification proceeding

and (2) not foreign to the duties of a lawyer.

Acquiring materials from a client pertaining to a matter in

dispute and reviewing, copying, retaining custody of, analyzing, and

producing those materials are paradigmatically “the provision of ‘legal’

services involving the unique office, professional skill, training, and

authority of an attorney.” 54 So too is all the other conduct about which

Robbins complains. Using information acquired from a client to conduct

discovery, in pleadings, in communications with the court, and to obtain

a court order; attempting to use that information as demonstrative

evidence at trial; and providing materials to an expert witness all fall

squarely within the scope of Taylor’s representation of Broome in the

modification proceeding. 55 Likewise, making a demand on a client’s

behalf—such as Taylor’s insistence that Robbins sign a proposed order

resolving the dispute—is also within the realm of legal representation. 56

In engaging in these activities, Taylor acted on behalf of her client in a

54 Haynes & Boone, 631 S.W.3d at 78.

55Cf. Bethel, 595 S.W.3d at 658 (“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.”).

56See Youngkin, 546 S.W.3d at 684 (“The conduct Hines complains of—

negotiating and entering a settlement agreement . . . —falls within the scope

of Youngkin’s representation . . . and is not foreign to the duties of a lawyer.”);

Highland Cap. Mgmt., LP v. Looper Reed & McGraw, P.C., No. 05–15–00055–

CV, 2016 WL 164528, at *6 (Tex. App.—Dallas Jan. 14, 2016, pet. denied)

(mem. op.) (holding that actions including “making demands on the client’s

behalf, advising a client to reject counter-demands, speaking about an

opposing party in a negative light, advising a client on a course of action, and

even threatening particular consequences” are within the scope of an

attorney’s legal representation of a client).

15

lawyerly capacity because conducting discovery, filing pleadings,

obtaining court orders, and seeking the admission of evidence are the

kinds of actions that lawyers undertake in representing a client. Taylor

engaged in this conduct in connection with her duties as a lawyer in the

adversarial context of the modification proceeding where her client’s

objective was to secure enhanced custodial rights. 57

Considering all the allegations in Robbins’s petition, Taylor was,

in all respects, engaging in “the office, professional training, skill, and

authority of an attorney” in the ways that she allegedly used and

disclosed the materials her client provided. Because Taylor’s conduct

falls squarely within the confines of attorney immunity, the alleged

criminality or wrongfulness of the conduct does not perforce preclude its

availability as an affirmative defense. 58

This conclusion does not, however, terminate the analysis. We

must also consider Robbins’s argument that the common-law

attorney-immunity defense is unavailable—either categorically or

specifically—as a defense to her statutory claims. In Bethel, no

statutory causes of action were pressed against the attorney—it is a

spoliation case. But the source of the plaintiff’s claim, whether under

the common law or a statute, does not, alone, nullify the immunity

defense. That being the case, if attorney immunity is unavailable here,

it is only because the specific statutes at issue—the state and federal

wiretap statutes—preclude it. On that score, we do not agree with

Robbins that the defense is only available if a statute expressly adopts

57 Haynes & Boone, 631 S.W.3d at 78.

58 See Bethel, 595 S.W.3d at 657.

16

it, and we hold that the Texas wiretap statute does not abrogate the

defense. However, for reasons we explain below, we conclude that

Texas’s common-law attorney-immunity defense is unavailable under

the federal statute.

C. Texas Wiretap Statute

Common-law defenses may be abrogated by statute, 59 but under

Texas law, statutes purporting to abrogate common-law principles must

do so either expressly or by necessary implication. 60 Texas’s wiretap

statute does not expressly repudiate the common law or the

attorney-immunity defense. Robbins nonetheless argues that because

the Legislature enacted specific defenses to criminal prosecution and

civil liability for wiretapping, the statute necessarily fences out all

common-law defenses not explicitly articulated in the statute. 61 And

because the wiretap statute does not expressly adopt the common-law

attorney-immunity defense, Robbins contends Taylor may not rely on it.

Under Robbins’s line of reasoning, the Legislature would be

required to expressly enact or “opt into” each and every defense

applicable to a given cause of action, including defenses that exist under

common law. But that is not the law in this state. As a general

proposition, we follow an “opt-out” approach that incorporates

59 See Dugger v. Arredondo, 408 S.W.3d 825, 836 (Tex. 2013).

60Forest Oil Corp. v. El Rucio Land & Cattle Co., 518 S.W.3d 422, 428

(Tex. 2017).

61 E.g., TEX. CODE CRIM. PROC. art. 18A.504; TEX. PENAL CODE

§ 16.02(c).

17

common-law principles absent the Legislature’s clear repudiation. 62

Accordingly, the Legislature need not expressly adopt the

attorney-immunity defense for it to apply to claims under the wiretap

statute.

As we have often said, courts presume that the Legislature acted

with complete knowledge of existing law and with reference to it. 63

When the Legislature makes law, it does so against a backdrop in which

common-law defenses abound, and those defenses are generally

available unless the Legislature clearly indicates otherwise. 64 We will

62 Compare Forest Oil, 518 S.W.3d at 428 (“Abrogation of a common-law

right, as we have said, ‘is disfavored and requires a clear repugnance’ between

the common-law cause of action and the statutory remedy. A statute’s ‘express

terms or necessary implications’ must indicate clearly the Legislature’s intent

to abrogate common-law rights.” (quoting Cash Am. Int’l Inc. v. Bennett, 35

S.W.3d 12, 16 (Tex. 2000))), with Smith v. Baldwin, 611 S.W.2d 611, 616-17

(Tex. 1980) (“In light of the facts that the DTPA was not designed to be a

codification of the common law, the absence of a mental state element . . . and

[the element’s] inclusion in other subdivisions, the legislative history of the

1979 amendments, and in keeping with the mandate of liberal construction,

we hold [that a particular DTPA provision] does not require proof or a finding

of intentional misrepresentation before the sanctions of the DTPA are

imposed.”).

63Amazon.com, Inc. v. McMillan, 625 S.W.3d 101, 106-07 (Tex. 2021)

(“Because we presume that the Legislature uses statutory language ‘with

complete knowledge of the existing law and with reference to it,’ we have

concluded that concepts included in the Legislature’s ‘seller’ definition

acquired particular meaning from our common-law products liability cases.”

(quoting In re Allen, 366 S.W.3d 696, 706 (Tex. 2012)) (citations omitted)).

64 Cf., e.g., Dugger, 408 S.W.3d at 832 (“When the Legislature intends

an exception to Chapter 33’s broad scheme, it creates specific exceptions for

matters that are outside the scope of proportionate responsibility. . . . We find

no such indication that the Legislature intended a plaintiff’s unlawful conduct

to be treated differently from the other common law defenses under the former

contributory negligence scheme[.]”).

18

not presume the contrary, so we cannot conclude that the

attorney-immunity defense is inapplicable to a state wiretapping claim

unless the Legislature explicitly abrogated the defense or the defense

inherently conflicts with the statute. 65 Statutes “creat[ing] a liability

unknown to the common law,” like the Texas wiretap statute, are

“strictly construed in the sense that [the statute] will not be extended

beyond its plain meaning or applied to cases not clearly within its

purview.” 66 That means courts “must look carefully to be sure” the

Legislature intended to “modify common law rules.” 67

Robbins does not contend that the Texas wiretap statute

expressly repudiates common-law defenses, but she suggests that it does

so by necessary implication. Though she points out that the Code of

Criminal Procedure codifies a good-faith defense to the private right of

action for wiretapping 68 and the Penal Code provides specific affirmative

65 See Energy Serv. Co. of Bowie, Inc. v. Superior Snubbing Servs., Inc.,

236 S.W.3d 190, 194 (Tex. 2007) (“Of course, statutes can modify common law

rules, but before we construe one to do so, we must look carefully to be sure

that was what the Legislature intended.”); cf. Gunn Infiniti, Inc. v. O’Byrne,

996 S.W.2d 854, 856-57 (Tex. 1999) (“Nothing in the DTPA evidences a

legislative intent to withdraw mitigation of damages as an affirmative

defense . . . . Nor does the concept of mitigation inherently conflict with the

DTPA.”).

66 Smith v. Sewell, 858 S.W.2d 350, 354 (Tex. 1993).

Energy Serv. Co., 236 S.W.3d at 194; Satterfield v. Satterfield, 448

67

S.W.2d 456, 459 (Tex. 1969).

68TEX. CODE CRIM. PROC. art. 18A.504 (stating that “good faith reliance

on a court order or legislative authorization constitutes a complete defense to

an action brought under Article 18A.502”).

19

defenses to criminal prosecution, 69 the Legislature did not make those

defenses exclusive, and the statute cannot be fairly read as clearly

repudiating civil-liability defenses otherwise available under the

common law.

Robbins also cites the statute’s language creating “a civil cause of

action against any person who intercepts, discloses, or uses . . . the

communication[.]” 70 Although “any person” would inarguably include

attorneys, we are not convinced that the breadth of the statutory

language—which is not at all uncommon—clearly shows legislative

intent to abrogate common-law defenses generally or attorney immunity

specifically. 71 The attorney-immunity doctrine does not apply to all

conduct by attorneys, so attorneys are not precluded from being the

subject of a wiretap claim even though some of their conduct may give

rise to an immunity defense. In this regard, Robbins suggests a false

dichotomy. In reality, attorneys can be persons to whom the statute

applies and also immunized from civil liability for the kind of conduct

the immunity defense protects.

Nor does the statute’s evidentiary bar render Taylor’s conduct

foreign to the duties of an attorney or abrogate the attorney-immunity

defense. The Texas wiretap statute precludes “[t]he contents of an

intercepted communication and evidence derived from the

69 TEX. PENAL CODE § 16.02(c) (“It is an affirmative defense to

prosecution under Subsection (b) that . . . .”).

70 TEX. CODE CRIM. PROC. art. 18A.502 (emphasis added).

71See Energy Serv. Co., 236 S.W.3d at 194 (before construing a statute

to modify common-law rules, “we must look carefully to be sure that was what

the Legislature intended”).

20

communication” from being “received in evidence in any trial, hearing,

or other proceeding in or before any court,” 72 but this limitation on

admissibility of evidence is not repugnant to the attorney-immunity

defense because the sum total of an attorney’s legal duties does not begin

and end with admissibility of evidence. First, inadmissibility of evidence

does not foreclose all uses or disclosures of that evidence. 73 For example,

relevant information that is reasonably calculated to lead to admissible

evidence at trial is discoverable even though that information may later

be ruled inadmissible. 74 Similarly, an attorney like Taylor who receives

such evidence from a client may be under a duty to produce (i.e., use and

disclose) such evidence if responsive to an appropriate request from an

opposing party. More significantly, the evidentiary bar does not speak

to an attorney’s nonlitigation adversarial uses and disclosures at all.

Second, like other rules of evidence, this statute governs what a

trial court may receive into evidence—not what an attorney may seek to

have admitted. 75 In other words, it decrees what a court may do, not

what an attorney may do. Declaring intercepted communications and

72 TEX. CODE CRIM. PROC. art. 18A.357(a)(1). The federal wiretap

statute contains a similar prohibition. 18 U.S.C. § 2515.

73We emphasize, however, that the defense does not permit attorneys

who, for example, make bad-faith arguments for admissibility or intentional

misrepresentations to a court to escape sanction or disciplinary action if

appropriate.

74 See TEX. R. CIV. P. 192.3(a).

75 See TEX. CODE CRIM. PROC. art. 18A.357(a)(1) (“The contents of an

intercepted communication and evidence derived from the communication may

be received in evidence in any trial, hearing, or other proceeding in or before

any court . . . unless . . . the communication was intercepted in violation of this

chapter, Section 16.02, Penal Code, or federal law[.]” (emphases added)).

21

evidence derived therefrom inadmissible is not clearly incompatible

with the attorney-immunity defense because this evidentiary limitation

does not comprehensively address the duties or conduct of a lawyer in

the representation of a client and instead speaks only to a narrow type

of attorney conduct.

Indeed, the statute includes no provision that is inherently

adverse to immunizing attorneys from civil liability for their legal work

on behalf of their clients. In Troice v. Greenberg Traurig, L.L.P., the

Fifth Circuit came to a similar conclusion in determining that the Texas

Securities Act (TSA) did not abrogate the attorney-immunity defense. 76

The court explained that (1) the TSA “contains no explicit abrogation of

immunity”; 77 (2) attorney immunity has been applied to bar claims

under other statutes; 78 and (3) the TSA’s purposes would not be so

clearly impeded if attorneys “are immunized while they work within the

scope of their representation of clients” that courts could be “sure that

the Texas Legislature intended to abrogate attorney immunity in the

context of TSA claims.” 79 Each of these rationales supports application

of the attorney-immunity defense to civil claims under the state wiretap

statute. Because nothing in the Texas wiretap statute demonstrates

76 921 F.3d 501, 507-08 (5th Cir. 2019) (holding that the Texas

Securities Act did not abrogate the attorney-immunity defense because the Act

was not explicit in doing so and because giving effect to the defense would not

impede the statute’s purpose).

77 Id. at 508.

78 Id.

79 Id.

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clear legislative intent to preclude attorney immunity, 80 the

common-law defense applies, and Taylor is immune from civil liability

under that statute.

That does not mean that all conduct criminalized by the wiretap

statute is immunized from civil liability or free of consequences. As we

explained in Bethel, while criminal conduct is not categorically excepted

from the attorney-immunity defense, neither is it categorically

immunized by that defense. 81 Criminal conduct may fall outside the

scope of attorney immunity, 82 and even when it does not, “nothing in our

attorney-immunity jurisprudence affects an attorney’s potential

criminal liability if the conduct constitutes a criminal offense.” 83 After

all, “attorney immunity is not boundless.” 84

In that vein, we note that Robbins has not pleaded facts

implicating Taylor in the alleged interception, either through action or

advice. Our holding today does not foreclose the possibility that such

80 See Forest Oil, 518 S.W.3d at 428; see also Energy Serv., 236 S.W.3d

at 194.

81 Bethel, 595 S.W.3d at 658 (citations omitted).

82 Id.

83 Id.

Id. at 657. As we have explained, attorney immunity applies only to

84

lawyerly work that lawyers undertake to discharge their professional duties in

connection with representation of a client. Our precedent identifies “several

nonexhaustive examples of [wrongful] conduct that may fall outside the reach

of the attorney-immunity defense,” for failure to meet one or more of these

requirements, including (1) “participat[ing] in a fraudulent business scheme

with a client”; (2) “knowingly helping a client with a fraudulent transfer” so

that client can “avoid paying a judgment”; (3) “theft of goods or services on a

client’s behalf”; and (4) “assaulting opposing counsel during trial.” Youngkin,

546 S.W.3d at 682-83.

23

conduct might fall outside the scope of attorney immunity. But as those

facts are not before us, we need not and do not express any opinion on

the matter. In this case, all of Taylor’s alleged conduct is covered by the

attorney-immunity defense because it was within the scope of her

representation of Broome and within her attorney function. She is

therefore immune from liability under the Texas wiretap statute.

This conclusion does not, however, compel the same outcome with

respect to the federal wiretap statute, which must be construed

according to its own terms and in light of how federal courts would

resolve the immunity question.

D. Federal Wiretap Statute

Taylor argues that Texas’s common-law attorney-immunity

defense applies to claims under the federal wiretap statute because

“Congress legislates against a background of common-law adjudicatory

principles,” 85 and courts should assume that Congress enacted the

federal wiretap statute with the expectation that common-law defenses

will operate unless a statutory purpose to the contrary is evident. 86 We

conclude that attorney immunity, as recognized and defined under

Texas law, is not a defense under the federal wiretap statute because,

quite simply, a state’s common-law defense does not apply to federal

85 Blevins v. Hudson & Keyse, Inc., 395 F. Supp. 2d 655, 659 (S.D. Ohio

2004).

E.g., Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 108

86

(1991) (“[W]here a common-law principle is well-established, . . . the courts

may take it as given that Congress has legislated with an expectation that the

principle will apply except ‘when a statutory purpose to the contrary is

evident.’” (citations omitted) (quoting Isbrandtsen Co. v. Johnson, 343 U.S.

779, 783 (1952))).

24

statutes. 87 Further considerations that support our conclusion include

(1) the federal statute’s plain language, (2) federal authority declining

to recognize extra-statutory defenses and immunities, and (3) Taylor’s

failure to identify a federal common-law defense that aligns with Texas’s

attorney-immunity defense that federal courts are likely to apply

notwithstanding the statute’s plain language.

When interpreting a federal statute, including whether it has

abrogated certain affirmative defenses, we endeavor to “anticipate how

the U.S. Supreme Court would decide the issue,” and “[t]his analysis

often draws on the precedents of other federal courts . . . to determine

the appropriate answer.” 88 In considering the existence or parameters

of a common-law defense that may apply to a federal statute, we also

“look to the common law, not of Texas or any particular jurisdiction, but

in general.” 89

Federal authority on the specific question of whether some

version of attorney immunity applies to the federal wiretap statute is

thin. Although federal courts have held that government attorneys are

absolutely immune from suit under 42 U.S.C. § 1983, 90 we have not

87 Cf. Union Pac. R.R. Co. v. Nami, 498 S.W.3d 890, 895 (Tex. 2016)

(holding that a defense derived from general common law, not Texas common

law, applied to the Federal Employers’ Liability Act).

88 In re Morgan Stanley & Co., 293 S.W.3d 182, 189 (Tex. 2009); see also

In re Facebook, Inc., 625 S.W.3d 80, 87 (Tex. 2021) (“When interpreting a

federal statute, this Court generally follows the decisions of the U.S. Supreme

Court.”).

89 Nami, 498 S.W.3d at 895.

90Imbler v. Pachtman, 424 U.S. 409, 423-24 (1976); see Barrett v. United

States, 798 F.2d 565, 571-73 (2d Cir. 1986) (holding that absolute immunity

25

found another statutory civil action to which a federal court has applied

any form of common-law attorney immunity.

Moreover, when federal courts use the term “attorney immunity,”

they are not necessarily talking about Texas’s particular brand of

attorney immunity. Courts have assigned the “attorney immunity”

appellation to defenses that substantively differ from one another. 91 In

its most common usage, the immunity more or less equates to what is

known in Texas as the judicial-proceedings privilege, which protects

“[c]ommunications in the due course of a judicial proceeding” from

“serv[ing] as the basis of a civil action for libel or slander, regardless of

the negligence or malice with which they are made.” 92 The privilege’s

parameters are both broader and narrower than the attorney-immunity

defense because the privilege covers “any statement made by the judge,

jurors, counsel, parties[,] or witnesses” and “attaches to all aspects of

the proceedings,” 93 but it is also limited to “liability for spoken or written

words” (as opposed to a broad category of “actions” or “conduct”) and is

also extends to state litigators in civil cases even if they are defending, rather

than prosecuting, a case).

91 E.g., Nix v. O’Malley, 160 F.3d 343, 352-53 (6th Cir. 1998) (using the

term “attorney immunity” to refer to what Texas courts call the

judicial-proceedings privilege—a substantively different defense).

92 Landry’s, 631 S.W.3d at 46 (quoting James v. Brown, 637 S.W.2d 914,

916 (Tex. 1982)); see also RESTATEMENT (SECOND) OF TORTS § 586 (AM. L. INST.

1977) (“An attorney at law is absolutely privileged to publish defamatory

matter concerning another in communications preliminary to a proposed

judicial proceeding, or in the institution of, or during the course and as a part

of, a judicial proceeding in which he participates as counsel, if it has some

relation to the proceeding.”).

93 James, 637 S.W.2d at 916-17.

26

inapplicable outside the judicial proceeding. 94 Nearly all states

recognize this variety of “absolute immunity for lawyers . . . with ‘very

little variation’ from state to state.” 95 It is just known by other names

in other states. 96 In the federal cases Robbins cites as rejecting attorney

immunity under the federal wiretap statute, the litigants had asked the

court to adopt other states’ versions of the judicial-proceedings privilege,

referred to in those cases by variations on the phrase “attorney

immunity.” 97 But because, under Texas law, the judicial-proceedings

94 Landry’s, 631 S.W.3d at 51.

95 T. Leigh Anenson, Absolute Immunity from Civil Liability: Lessons

for Litigation Lawyers, 31 PEPP. L. REV. 915, 917-18 (2004) (quoting Paul T.

Hayden, Reconsidering the Litigator’s Absolute Privilege to Defame, 54 OHIO

ST. L.J. 985, 991-92 n.37 (1993)); see Simms v. Seaman, 69 A.3d 880, 886-87

(Conn. 2013) (“The principle that defamatory statements by attorneys during

judicial proceedings are absolutely privileged when they are pertinent and

material to the controversy is now well established in American

jurisprudence.”); RESTATEMENT (SECOND) OF TORTS § 586 (AM. L. INST. 1977).

96 See, e.g., Simms, 69 A.3d at 881 & n.1 (“litigation privilege”);

Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So. 2d 380, 380

& 383 (Fla. 2007) (“litigation privilege”); Kirschstein v. Haynes, 788 P.2d 941,

948-54 (Okla. 1990), superseded on other grounds by rule, OKLA. SUP. CT. R.

1.26 (“absolute privilege”); Surace v. Wuliger, 495 N.E.2d 939, 942-43 (Ohio

1986) (“absolute privilege in judicial proceedings”).

97E.g., Nix, 160 F.3d at 352-53; Babb, 616 F. Supp. 2d at 1207-08; see

also Lewton v. Divingnzzo, 772 F. Supp. 2d 1046, 1057 (D. Neb. 2011) (citing

Babb, 616 F. Supp. 2d at 1207, and Nix, 160 F.3d at 352-53) (“[T]he court was

unable to find any binding authority holding that an attorney who uses a

communication intercepted in violation of the federal Wiretap Act is entitled

to blanket immunity from Title III liability. The court did find persuasive

authority to the contrary.”).

27

privilege is distinct from attorney immunity, those cases are not strictly

applicable here. 98

Even so, these cases, along with others, provide a strong basis for

concluding that federal courts would be unlikely to apply Texas’s

attorney-immunity defense to the federal wiretap statute. Although we

have found nothing on point, federal courts are nearly uniform in

declining to adopt extra-statutory exceptions and refusing to apply state

common-law defenses, such as the judicial-proceedings privilege and

interspousal immunity. 99 Admittedly, there are few cases on the topic,

but the reasons the courts have offered are straightforward.

98 “The ‘judicial-proceedings privilege’ and ‘attorney immunity’ are

‘independent [defenses] serving independent purposes.’” Landry’s, 631 S.W.3d

at 46 (alteration in original) (quoting Cantey Hanger, 467 S.W.3d at 485 n.12);

see id. at 46-47 (detailing the differences between the two defenses).

99 Glazner v. Glazner, 347 F.3d 1212, 1214-16 (11th Cir. 2003); Kempf

v. Kempf, 868 F.2d 970, 972-73 (8th Cir. 1989); Pritchard v. Pritchard, 732 F.2d

372, 373-74 (4th Cir. 1984); Lewton, 772 F. Supp. 2d at 1057; Babb, 616 F.

Supp. 2d at 1207-08; Gill v. Willer, 482 F. Supp. 776, 778 (W.D.N.Y. 1980);

Remington v. Remington, 393 F. Supp. 898, 901-02 (E.D. Pa. 1975); accord Ex

parte O’Daniel, 515 So. 2d 1250, 1253 (Ala. 1987); see also United States v.

Jones, 542 F.2d 661, 667-73 (6th Cir. 1976); Pyankovska v. Abid, No. 2:16–CV–

2942 JCM (PAL), 2017 WL 5505037, at *4 (D. Nev. Nov. 16, 2017) (applying

Babb, 616 F. Supp. 2d at 1207); compare Nix, 160 F.3d at 350-53 (stating no

implied statutory immunity “has a breadth equal to that of the common-law

defamation privilege” and declining to adopt such immunity because (1) “th[e]

proposed immunity contravenes the [statute’s] plain language,” which requires

exceptions to be explicit and (2) the disclosures that occurred “exceed[ed] the

boundaries of any attorney immunity because [they] were tangential to [the

client’s] defense,” while at the same time (a) acknowledging that the circuit

court had previously recognized “very narrow[]” “unwritten exceptions” and

(b) adopting a narrow “defense exception” that offers defendants a limited

privilege to use and disclose communications in defense of a wiretapping

lawsuit).

28

First, the statute applies to “any person” “[e]xcept as otherwise

specifically provided” in the statute. 100 This exclusivity language makes

the terms of the federal statute materially different from the Texas

statute. Based on this “plain and explicit” and “clear and unambiguous”

language, federal courts have rejected exceptions and immunities that

are not specifically enumerated in the statute. 101 Further, as federal

100 18 U.S.C. § 2511(1) (emphasis added).

101 Kratz v. Kratz, 477 F. Supp. 463, 467 (E.D. Pa. 1979) (“The clear and

unambiguous meaning of [section] 2511(1)(a) is to prohibit the interception of

All wire communications by Any person except as Specifically provided by

Congress.” (emphasis added)); see Heggy v. Heggy, 944 F.2d 1537, 1540 (10th

Cir. 1991) (concluding the federal wiretap statute does not exempt interspousal

interception, use, or disclosure based on the statute’s express language

requiring an exception to be “specifically” articulated in the statute); Nix, 160

F.3d at 350-53 (declining to adopt the defamation privilege, in part, because

“this proposed immunity contravenes [the statute’s] plain language”); Jones,

542 F.2d at 666-67 (refusing to apply an interspousal-immunity privilege as a

defense to prosecution based on the “straightforward and comprehensive”

language of the statute, which “quite clearly expresses a blanket prohibition

on all electronic surveillance except under circumstances specifically

enumerated in the statute”); Heyman v. Heyman, 548 F. Supp. 1041, 1045-47

(N.D. Ill. 1982) (refusing to recognize an interspousal-immunity exception and

declaring the statute’s language “clear” and “unambiguous” in prohibiting any

exceptions “except as specifically provided in the statute”).

At least one federal court has also refused to apply a different state

common-law defense—interspousal tort immunity—to the federal wiretap

statute because Congress did not include the defense in far-reaching

amendments. E.g., Heggy, 944 F.2d at 1541. “[H]ad it been the intent of

Congress to keep interspousal wiretapping beyond the reach of Title III,

Congress could have expressly excluded [it] when it overhauled Title III in the

Electronic Communications Privacy Act of 1986[.]” Id. But even though those

“amendments touched nearly every section of Title III, Congress did not codify

the judicially created exception for interspousal wiretapping[.]” Id. The choice

not to codify the interspousal-immunity defense in an otherwise wide-ranging

statutory overhaul has been interpreted as reflective of a congressional intent

to deny the defense. See id.

29

courts have noted, the United States Supreme Court has generally

stated that “the purpose of the Act is to effectively prohibit ‘all

interceptions of oral and wire communications, except those specifically

provided for[.]’” 102

Second, courts have explained that state law cannot modify

federal law. As the Tenth Circuit succinctly put it: “The short answer to

the [state common-law] immunity defense is that [the federal wiretap

statute] creates a federal cause of action that cannot be barred by any

state law or policy.” 103 This view generally accords with our analysis in

Union Pacific Railroad Co. v. Nami, which looked to general

common-law principles, rather than the common law of Texas or any

particular jurisdiction, in determining that the common-law ferae

naturae doctrine applies to claims under the Federal Employers’

Liability Act. 104

While there is a dearth of federal cases on the precise issue

presented, we think it unlikely that a federal court would apply Texas’s

common-law attorney-immunity defense to the federal wiretap statute

102See Heyman, 548 F. Supp. at 1045 (quoting United States v.

Giordano, 416 U.S. 505, 514 (1974)).

103 Heggy, 944 F.2d at 1541 n.8 (discussing the interspousal-immunity

defense); see Jones, 542 F.2d at 672 (holding that the federal wiretap statute

contains no express or implied exception for interspousal wiretaps and noting

“[t]here is also substantial doubt whether a doctrine of state tort law should

have any influence in defining a cause of action expressly created by federal

statute, particularly when Congress could have included a similar provision in

the statute and failed to do so”); Kratz, 477 F. Supp. at 475 (“[T]he cause of

action in this case is provided by federal law and cannot be subverted by any

state law or policy.”).

104 498 S.W.3d at 895-99.

30

if presented with the question today. Based on the statute’s plain

language, which requires exceptions to be explicit, we also find it

unlikely that a federal court would apply a federal common-law version

of our attorney-immunity defense, but to the extent that is a reasonable

possibility, Taylor has not substantiated the existence or contours of any

such defense. Accordingly, we hold that Taylor may not invoke Texas’s

attorney-immunity defense as a bar to liability under the federal

wiretap statute.

III. Conclusion

Taylor is entitled to summary judgment on Robbins’s state

wiretapping claims because the kind of conduct alleged in support of

those claims falls within the scope of the attorney-immunity defense.

But Taylor is not entitled to summary judgment on Robbins’s claims

under the federal wiretap statute because we are not convinced that

federal courts would apply Texas’s common-law attorney-immunity

defense to that statute. We thus affirm the court of appeals’ judgment

in part, reverse and render judgment in part, and remand the case to

the trial court for further proceedings on the federal wiretap claims.

John P. Devine

Justice

OPINION DELIVERED: May 6, 2022

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