Sex, Drugs & Attorney-Qualified Immunity

You don’t have to fire the private investigator you hired to spy on the opposing party. The 14th Court of Appeals at Houston has recently released a new opinion clarifying the bounds of attorney-qualified immunity as it relates to privacy torts.

Professor Deana Pollard Sacks filed suit against the Houstonian back in 2009 alleging a host of improper acts (including ignoring reports of sexual activity and drug use at the Houstonian) after the Houstonian terminated her club membership (more information regarding the suit can be found at During the suit, Professor Sacks turned her ire to the attorneys for the Houstonian, alleging that the attorneys “improperly and illegally” obtained her medical records from another attorney representing a defendant in a different case brought by Sacks, who allegedly “improperly and illegally” obtained the records from Sacks’ dentist.

The attorneys for the Houstonian answered, asserting the affirmative defense of attorney-qualified immunity and arguing that they were qualifiedly immune from Sacks’ suit because she was seeking to hold them liable for their litigation conduct in a pending suit. The trial court granted summary judgment in favor of the attorneys. Sacks appealed.

Because Sacks alleged that attorneys committed the intentional tort of invasion of privacy, the 14th Court considered “whether Sacks’ allegations of invasion of privacy fall into the class of torts recognized by Texas involving fraudulent or malicious conduct so as to preclude [the attorneys for the Houstonian] from litigation immunity.” The Court held that the claims did not.

The Court of Appeals noted that “[c]ourts have consistently held that attorneys should not be liable for statements made or actions taken in the course of representing their clients, because they would then be forced to balance their own potential exposure against their clients’ best interests . . . . However, this litigation immunity does not apply to alleged torts based on the attorney‘s fraudulent or malicious conduct.” The Court held that “an invasion-of-privacy claim is not one of the recognized types of behavior that falls into the category of fraudulent or malicious conduct identified by courts of this state.” The Court reasoned that “the conduct about which Sacks complains is the type of conduct in which attorneys routinely engage when zealously defending their clients: they conduct discovery to assist in representing their clients in pending litigation, often hiring investigators to inquire into many aspects of an adversary’s life.” The Court finally noted that “if [Sacks] had any evidence that opposing counsel were abusing the discovery process, discovery sanctions would be available to her.”

This ruling by the 14th Court of Appeals clarifies the contours of attorney-qualified immunity as it relates to invasion of privacy torts and will undoubtedly serve as a bulwark in protecting attorneys engaged in zealous representation during the discovery process.

[Editors Note: Congratulations to Dawn S. Holiday and the Appellate Team at Roberts Markel Weinberg PC for obtaining a victory in favor of the attorneys for the Houstonian]

The full opinion can be found at: