In accordance with this purpose, there is consensus among the courts of appeals 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.” Alpert v. Crain, Caton & James, P.C., 178 S.W.3d 398, 405 (Tex.App.–Houston [1st Dist.] 2005, pet. denied) ; see also Toles v. Toles, 113 S.W.3d 899, 910 (Tex.App.–Dallas 2003, no pet.) ; Renfroe v. Jones & Assocs., 947 S.W.2d 285, 287–88 (Tex.App.–Fort Worth 1997, pet. denied). 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.”

Texas law authorizes attorneys to “practice their profession, to advise their clients, and to interpose any defense or supposed defense, without making themselves liable for damages.” Kruegel v. Murphy, 126 S.W. 343, 345 (Tex.Civ.App.-Dallas 1910, writ ref'd); see Renfroe v. Jones & Assocs., 947 S.W.2d 285, 287 (Tex.App.-Fort Worth 1997, writ denied). The purpose behind this well-established rule is to allow an attorney to fulfill his duty and zealously represent his clients without subjecting himself to the threat of liability.

Seeid. "Any other rule would act as a severe and crippling deterrent to the ends of justice for the reason that a litigant might be denied a full development of [her] case if [her] attorney were subject to the threat of liability for defending [her] client's position to the best and fullest extent allowed by law, and availing [her] client of all rights to which [she] is entitled." SeeToles, 113 S.W.3d at 910; see alsoRenfroe v. Jones Assocs., P.C., 947 S.W.2d 285, 288 (Tex. App.-Fort Worth 1997, pet. denied). The public has an important interest in loyal and aggressive representation by the legal profession.

A second Texas appellate court has reached a similar result. In Renfroe v. Jones Associates, 947 S.W.2d 285 (Tex.App. — Fort Worth 1997, writ denied), a plaintiff appealed from a grant of summary judgment dismissing an action for wrongful garnishment. The plaintiff, Renfroe, alleged that the defendant law firm, Jones Associates, applied for a writ of garnishment against her based on a false affidavit signed by Jones Associate's client.

Because the courts of appeals analyzing attorney immunity under Kruegel generally require the attorney's conduct to have occurred in the litigation context, I refer to this theory as "litigation immunity." See, e.g., Renfroe v. Jones & Assocs., 947 S.W.2d 285, 287-88 (Tex. App.—Fort Worth 1997, writ denied); Bradt v. West, 892 S.W.2d 56, 72 (Tex. App.—Houston [1st Dist.] 1994); Morris v. Bailey, 398 S.W.2d 946, 947-48 (Tex. Civ. App.—Austin 1966, writ ref'd n.r.e.). Under the second theory, although not raised expressly here but nevertheless important to the context of attorney immunity in Texas, any statement made in the due course of or in serious contemplation of a judicial or quasi-judicial proceeding is absolutely privileged and cannot serve as the basis for a defamation lawsuit.

Texas law authorizes attorneys to "practice their profession, to advise their clients, and to interpose any defense or supposed defense, without making themselves liable for damages." Kruegel v. Murphy, 126 S.W. 343, 345 (Tex. Civ. App.—Dallas 1910, writ ref'd); see Renfroe v. Jones & Assocs., 947 S.W.2d 285, 287 (Tex. App.—Fort Worth 1997, writ denied). The purpose behind this well-established rule is to allow an attorney to fulfill his duty and zealously represent his clients without subjecting himself to the threat of liability.

See Bradt, 892 S.W.2d at 76; Morris v. Bailey, 398 S.W.2d 946, 947 (Tex.Civ.App.-Austin 1966, writ ref'd n.r.e.). An attorney's duties that arise from the attorney-client relationship are owed only to the client, not to third persons, such as adverse parties. See Renfroe v. Jones Assoc., 947 S.W.2d 285, 287 (Tex.App.-Fort Worth 1997, writ denied). They have not retained the attorney, the attorney has not rendered them any services, and no privity of contract exists between them and the attorney.

In other words, "[u]nder Texas law, attorneys cannot be held liable [to a non-client] for wrongful litigation conduct." Id. at 406 (quotingRenfroe v. Jones Assoc., 947 S.W.2d 285, 288 (Tex. App. — Fort Worth 1997, writ denied)). In Renfroe, in which the court affirmed a summary judgment dismissing an action brought against an attorney for wrongful garnishment, the court stated:

This qualified immunity focuses on the type of conduct in which the attorney engages rather than on whether the conduct was meritorious. Renfroe v. Jones & Assoc., 947 S.W.2d 285, 288 (Tex. App.—Fort Worth 1997, writ denied). It is the kind of conduct and not its nature that is controlling.

"Texas law has long authorized attorneys to 'practice their profession, to advise their clients and interpose any defense or supposed defense, without making themselves liable for damages.'" Renfroe v. Jones & Assocs., 947 S.W.2d 285, 287 (Tex. App.—Fort Worth 1997, writ denied) (quoting Kruegel v. Murphy, 128 S.W. 343, 345 (Tex. Civ. App.—Dallas 1910, writ ref'd)). In fulfilling his professional duties, "an attorney has the right to interpose defenses and pursue legal rights that he deems necessary and proper, without being subject to liability or damages."