welcome you here today we are prepared for your arguments by having read the briefs and the record excerpts we have not necessarily gotten into the record so we'll appreciate your giving  citations when appropriate we are we also have a traffic light system and a little excitement when the yellow light comes on you have two minutes left and argument when the red light comes on we ask you to please conclude unless second stamford case on the docket this week and we'll hear from mr young please the court fifteen months ago in the kelly versus mitchell decision this court said that the texas law attorney immunity was somewhat in flux that the kennedy hanger decision from the supreme court had not resolve the question of whether attorney immunity applies out of out side of litigation or in litigation like setting and that no post can a hanger case law provided a satisfactory answer to that question today nothing is changed some additional texas cases have been decided but none of them addresses the litigation exception and all are in the litigation or litigation like setting the kelly court was able to a farm on alternative grounds this court has some of such luxury the viability of the litigation limitation was squarely raised in the motion to dismiss  response in the district court's ruling the pleadings allege copious non litigation conduct by carlos lumia and other greenberg lawyers and greenberg did not contend otherwise in the court below we believe in this case the most satisfactory resolution of the uncertainty identified in cali would be by certifying this case to the supreme court of texas the other immunity issues in the case the existence of a crime exception and the applicability of immunity under the texas securities act would likewise benefit from certification but against the possibility that the court will decide not to certify let me turn to the merits and  justice greens of opinion for these four justices persuasively analyzed and reconciled the two branches of texas law from which attorney immunity is derived one often expressed the referred to as litigation immunity and a rising historically in a litigation context and the other involving the absolute privilege for communications made in judicial and quasi judicial proceedings and it compared  contrasted the supreme court cases applying immunity with the pool case in which the supreme court held that and attorney was liable for participating with his client in the commission of a fraud outside the litigation cont the opinion also analyzed the purposes of a turning immunity the need to protect zealous advocacy and reasoned that those purposes were outweighed in the non litigation conduct by the need to refrain from immunising attorneys participation in their client's fraudulent business schemes it also noted that the procedural safeguards present in the litigation cont are diminished outside of those contexts making civil liability more of a necessary deterrent in the case of non litigation conduct now dissents are not the law but neither are majority opinions when they expressly declined to decide the issue the majority in candy hanger went out of its way to not only say that it need not consider the question but it criticized dissent said that the discount dissent mischaracterized the majority opinion as even suggesting that immunity is not limited to the litigation cont short can a hanger provides no answer to the question pending before the court today can a hanger focused on whether the attorneys conduct was within the scope of the legal representation of the client that is a fairly easy question to answer in the litigation context but outside of litigation attorneys can do and often do some things that only attorneys can do but many things that can be done and often are done by non attorneys without the litigation limitation the courts must either create a special privilege for lawyers when they do things and not when other professionals do those same things or it must engage in endless line drawing between things that are central to the attorney's role as represent his client and things that are not finally the limitation of attorney immunity to the litigation context does not leave non attorneys without remedy in many cases they will lack a duty to the point of in many cases they will act pretty with the plaintiff and in many fraud cases there will be no justifiable reliance but in those cases where there is a duty and is a violation the turn immunity if applied outside the litigation context would immunize a great many forms of misconduct so to summarize on this point the history of attorney immunity in texas the balancing of policy interests and the administer ability of the immunity doctrine all argue in favor of limiting attorney immunity to conduct in and around litigation not necessarily from the filing of the complaint to the judgment but associated with litigation and other adversarial kweisi judicial where we can to issue a ruling apart from the facts that are alleged here so how do your facts apply to the rule that you want us to state well assuming we don't certify this is a twelve  d is not in a litigation con text in any way shape or form it's advice it is lobbying of the government of antigua other proceedings that are  cannot possibly be characterized as a litigation if the court sustains the limitation to litigation and sends the case back judge godby will have to as the case progresses identify which  misconduct is connected to litigation and which is not and presumably if that's the only basis for the court's ruling will exclude those forms that are not part of litigation let me turn if i may to the texas securities act attorneys rarely issue securities themselves but they often aid and abet those who do the t s a creates a broad consumer with either the intent to deceive or defraud or with reckless disregard of the facts or the law and it creates its own internal set of affirmative defenses one if the buyer already knew untruth or omission and two if the seller often or did not know of the untruth or omission and could not have known through the exercise of reasonable care several courts have held that traditional common law defenses are not available under the t s a at least to the extent that they undercut the statutes remedial scheme it makes no sense to say and is not consistent with the statutory scheme to say than an attorney may aid and abet securities fraud with scienter merely because he does so in the course of representing a client the t s a says that it construed in harmony with federal law let me ask you inches off the wall question here but enron failed leaving thousands and thousands of investors in the lurch how come there's no litigation springing out ron of this story is well enron had as you know very prominent and numerous prominent law firms and i think a couple of them settled with them wrong or with  it's instructive to look at federal securities law as it existed per prior to the supreme court's central bank decision when aiding and abetting liability still existed in private civil actions and in that era federal courts held attorneys liable on the same basis as everybody else for aiding and abetting federal securities violations there are textural indications in the t s a that the same result es a limitation of liability for a person who has been engaged to provide services relating to a small business issuance and it expressly includes attorneys and law firms now the provision by its very existence implies that those attorneys who are hired to provide services by an issue are have potential liability under section thirty three of the t s a for violations committed in the course of providing those services if that were not so there would be no reason to limit that liability that potential liability is at odds with attorney immunity for acts committed in the course of providing those services now my colleague says that attorney liability under the t s a is limited to cases of direct misrepresentation to non clients with the intent that they rely on those representations respectfully that confuses the issue of duty with the issue of immunity under the supreme court's mckay miche decision there is a duty by an attorney to a non client in those circumstances for negligent misrepresentation and by extension for fraud if i write an opinion letter knowing that it's going to be relied upon by non clients but that's the measure of the attorney's duty not an immunity concept under the t s a the attorney has the same duty that everybody else has not to aid and abet in a securities violation that does not require privity that does not in the case of the t s a require reliance and instead the attorney's liability is measured by section thirty three did he know or was he in reckless disregard of the truth or the la w of texas has said that the t s a has to be given the widest possible scope as the courts of recognize that means allowing defenses only when they're consistent with  affording immunity in that situation would undercut that scheme so let me end where i began attorney immunity is a subject fraught with the balancing of competing policy considerations should the law favor attorney freedom of action and independence and when should it favor constraints on that freedom and independence in pursuit of a higher policy objective this court decides state law public policy questions every day no question about it but it rarely decides such questions in the face of this much state law uncertainty and so let me reiterate our belief that this case is appropriate for certification if the court however does not inclined to certify the question we respectfully submit that the judgment should be reversed and the cause should be remanded you happy to answer any questions lumia was acting within the course and scope of his respective employment with greenberg traurig and in furtherance of said law firms respective business when he engaged in a wrongful conduct described the area that's paragraph four fifty nine of the complaint there is no issue here that any of the conduct by mr looney or green was outside the role of a lawyer was in the words that can't be hanger and pool before it foreign to the duties of a lawyer it was the work that transactional lawyers and others do every day corporate work banking work regulatory work securities work and some litigation work there were no allegations  remuneration that was other than legal fees no hidden equity interests none of the fact patterns in cases like pool where a lawyer committed conduct that went outside the role of being a lawyer so as i think appellant recognized when they say on page two of their brief what they are seeking is an exception to an immunity that clearly would apply to greenberg traurig firm and its lawyers for the work that was done in this case now we submit that the rationale of attorney immunity applies whether the lawyer is drafting a corporate transaction negotiating a deal working with the f c c or appearing here in court lobbying the government of antigua that what lawyers do and it's subject to regulations just like lobbying effort would be in the united states just like actions with respect to going before the f going before banking commissioners and asking for it can see regulation as and we say the lobbying is the work that was done in greenberg was retained by the government of antigua to provide assistance in connection with drafting enhanced banking laws for anti and was really advising the government yes and i think that that is the type of work anyone a big country like the united states to have the capacity to have a large group of lawyers working for the government to do that states i think this is a certainly broader to and certain other states but it's not broader i believe with respect to securities matters then we are federal securities law provides protection for attorneys and other professionals and in answering this i think i can answer or try to answer your honor's question about enron which is where you had an exchange traded stock and because it was an exchange traded stock in the litigation on those issues had to be in federal court under the thirty four act and in central bank of denver as the court is aware the supreme court said there is no aiding and abetting cause of action and that's why you don't have actions like this involving enron and most securities transactions which would be governed by federal law so texas has in a way here reached a similar conclusion by broadly immunizing attorney and a rationale for doing so with very well stated by this court in the decision the court said the doctrine stimson a broad declaration that attorneys are authorized to practice their profession to advise their clients and oppose any defense without making themselves liable for damages that attorney immunity is necessary to avoid even evitable conflict that would arise if an attorney were forced constantly to balance his own potential exposure against his client's best interests and the court went on to say the purpose for attorney immunity is off quite similar to the purposes animating other immunities that texas is recognized as providing through immunities such as judicial immunity and prosecutorial immunity you know and i'm not making a comment on the status of the law but the law applicable to this case but in general no one denies that law has become at least as much a business a pure business as a that lawyers would have on the theory that they disinterested lea represent their client only until their client crosses the line well your honor i wouldn't disagree i would say though that is something for the texas bar the texas supreme court the texas legislature and federal courts can't step in and handle this well i think federal courts can resolve this issue i disagree with my colleague in on the issue of whether or not a certification is needed here and i disagree because whatever uncertainty made just in a can't hang your decision and he recognizes four justices to your do not make a majority that's a minority consistently you have lower court decisions in before and after can see hunger that all either expressly rejected a litigation exception or applied the attorney immunity without even discussing that issue six of those were nontraditional foreclosures well that is a foreclosure date say but it's still not litigation in texas it's non judicial they say three of the cases were dictum because it was litigation related activities will certainly be a clear standard for courts to apply several of those cases like santiago expressly rejected the idea that it was a litigation exception to the case of rogers for example in the lower texas court  one where an attorney allegedly took trade secret information and used to the outside of that to threaten a party with disclosure and yet because that was still within the context of attorney duties the court said that that was not something that was outside of the duties of a lawyer a couple of the cases they say should be distinguished because they relied on discordant statement and it ball before the anger that there was no litigation exception under texas law i respectfully don't think that that distinguishes the lower court in texas from reaching that conclusion and in three cases they say applied you have unity without discussion so on the terms of your own reply brief you have about more than a dozen cases plus a couple more we added with supplemental filings such as beth all that were decided in twenty eight eighteen and the remarkable thing about those cases is that they all come out the same way they all apply immunity beaumont so you have a number of different course courts represented in a wide range of cases and this is exactly what has been said before should be relied upon by this court and by the federal courts in making  so called erie prediction as to what the texas court would do if there is not a clear resolution of the issues by the texas supreme court and here you have a wealth of authority from those intermediate courts all pointing in the same that well my colleague used the term that he thought of unity should apply in and around litigation what kind of standard would that be to apply in and around litigation look at canty hangar itself there you had the immunity applied to the transfer of a deed allegedly to avoid a tax that would be imposed that was more than twelve months after the divorce decree finished and yet that was held to be within litigation it is i would submit at least as easy and easier to look at what is looked at every day by bar association says this work that requires and law license if it is if it's part of the duties of a lawyer and all those which are alleging this case fall within that  indian unity plots now you still have if you get into a situation where a lawyer for instance there's was a lawyer in florida who ran a ponzi scheme from his law office of course that person is subject to that just like in the pool case a lawyer with subject well there was there there is something is been noted in the press in texas recently in which a fairly prominent criminal defense lawyer was  because he was representing some very well known criminal group i won't go farther than that but if that were the case would that person be able to claim the benefit of immunity in which he said all i'm doing is giving them legal advice that money laundering might run afoul of the law no your honor i don't believe he would i mean first of all because that would be an indictment and therefore criminal action and we're dealing here i think with an immunity that would be limited to civil action which means that in addition to all the other regulatory restraints on transactional lawyers yes the sea banking authorities to bar association if someone acts in a criminal fashion you have the criminal law money laundering because funds were going through it and and you're saying if the lawyer was rendering legal advice albeit in you know whenever well if the actions was that of a lawyer if it was rendering legal advice and it's just being alleged that well he must have known that there was a money laundering scheme going on then that i think is what the texas supreme court and can getting at when they said we want you to look at the type of conduct rather than issues of intent because anyone can allege that intent by the lawyer the lawyer should have no greenberg traurig should have known that something was going on here  easy allegation to make and here we are six years later after the lawsuit been filed and still defending that when the issue is the type of conduct now if there was allegations here that the type of conduct was that  lawyer doesn't engage in secret profits issues of remuneration beyond that which a lawyer typically receives someone who goes into business with his or her client and commits a fraud those are the things liability i don't think opposing counsel said anything about the second argument that they briefed which was to crime exception because i think it follows from cantankerous that if there is no fraud exception there is no exception merely because the complaint would throw in a word saying that this is criminal and tapped again that is not talking about the type of conduct it is talking about the intent of the lawyer  conspiracy and those are three of the four counts that are brought here against greenberg traurig chante hanger you could make the same argument that if the attorney was engaged in aiding and abetting fraud that was criminal conduct any time ailes or wires would be used you would have a violation of mail or wire fraud statute so it would essentially turn canty hanger on its head and make it a dead letter if all that plaintiffs had to do was to add an extra word saying that  organ well your honor i think that's the argument that could be made for any remedial scheme whether it is common law or statutory that the purpose of the existence of that cause of action is at odds with an immunity or defense which cuts against it and i don't think the texas security exact is different but one thing which is different is that this is just not an ordinary defense in fact it was in the choice decision that this court said that what you have is here in a minute and that immunity is similar to prosecutorial immunity it's similar to judicial immunity it is a true immunity and therefore and those type of immunities have been recognized into courts as being exceptions even to the texas securities act the fink versus andersen case cited in our brief is such a decision and one case which is a federal case out of new york that the appellant rely upon to morgan stanley decision we submit does not support because in fact case it discussed a non statutory defense didn't discuss what the court and troy held was an immunity a stronger level of protection and secondly in that case if one looks at the opinion the party where conceded that non statutory defenses cannot defeat liability under texas blue sky law but argued they were relevant to be considered in the term and whether to grant rescission so even in that case you didn't have a true contest on the issue so there is no texas court that has ever held there is an exception for the t s a now i'd like to address what was  twenty eight jail letter we responded to that yesterday does have been filed on thursday by the appellants we respectfully submit that raising an issue outside the briefing in such a letter is not appropriate but in any event it is not support their position section twenty three in of the texas securities act does not create a recourse against attorneys it simply says that a limitation in small business mall issuances is subject to whatever claims are brought whether they are accountants the attorneys or otherwise now to to extent they argue well if you had this broader tourney immunity to covers everyone why would you have to have this there and the answer to that w we put into our responsive letter is that there are still cases where attorneys can be sued if they participate in making a representation to the clients not to their clients but to non clients purchasers of securities that case for example and because there are circumstances like that where claims could be brought against attorneys there is nothing inconsistent with the concept of attorney immunity for the legislature to have made clear that this limitation on liability for small issuances applies to aider and abettor cases involving attorneys and accountants and others so this argument which only was never raised below and was even raised in the br here does not change the overall position which is that there is no case in texas which is found such an exception that there is no exception to attorney immunity under comparable statutes and there we point to the texas debt collection act where there are cases we cite in our brief making clear that attorney immunity has been applied in that context and of course there is no with respect to the federal laws we've already discussed ability to go after aiding and abetting by attorneys because of the central bank of denver decision so as a practical matter texas would be consistent with the federal law that governs most securities transactions so for all those reasons your honor you know the plaintiff made a decision to bring this case in federal court they could have initiated a suit if they wished in state court and litigate it in that system and this court has acknowledged that when you elect to go in a federal court in one of the things that you accept is the fact federal courts have to make these predictions and have to look at the state of the law in the texas courts and determine how that should apply and here we have pretty clear law that may please the court just a few points the concept of litigation like setting is not a concept that you palance invented it is a concept that this court in the kelley versus n mof why do you have any suggestion that this five four decision on the texas supreme court would be changed would be changed if we certify but if you certify it the question will be presented squarely and unavoidably to the supreme court is there a litigation limitation for members of the texas supreme court said no now only three members because one of those four is now in this court five of them went out of their way to say we are not deciding that question maybe so maybe not we're not deciding that question and mischaracterizes our opinion to say that we're even suggesting an answer to that question so the reason it might be different is we don't know how those five judges justices would vote if the question was presented to them in a way that they needed to address it secondly with respect to the lower court decisions mr singer did not cite a case that says this is not litigation it is decision out of the texas courts the closest you come is the l j h decision of the eastern district of texas judge was a man in judgment zant reached his decision based on it ball which is non and on candy hanger itself and can hang or as i've said went out of its way to say we are not deciding that question lastly with respect to the t immunity is not immunity is not immunity the case my colleague cites applying immunity under the t s a was applying sovereign immunity sovereign immunity is enjoys an exalted place in texas law it is a doctrine of separation of powers and it deprives the court of jurisdiction and so it is no answer to say that because sovereign immunity applies t s a claims attorney immunity must apply to t s a claims because after all it's got the word immunity and they're very different concept unless the court has anything else you know don't don't miss characterize our silence