IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-10500

SAMUEL TROICE; PUNGA PUNGA FINANCIAL, LIMITED, individually 

and on behalf of a class of all others similarly situated; PAM REED, 

 Plaintiffs - Appellees

v.

PROSKAUER ROSE, L.L.P.; CHADBOURNE AND PARKE, LIMITED 

LIABILITY PARTNERSHIP; THOMAS V. SJOBLOM, 

 Defendants - Appellants

Appeals from the United States District Court

for the Northern District of Texas

Before BARKSDALE, CLEMENT, and HAYNES, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

This case represents more fallout from Allen Stanford’s massive Ponzi 

scheme. Plaintiffs filed this putative class action against one of Stanford’s 

lawyers, Thomas Sjoblom, and the law firms where he worked, arguing that 

they aided and abetted Stanford’s fraud and conspired to thwart the SEC’s 

investigation of Stanford’s scheme. After this case went to the Supreme Court 

and back on an issue not relevant here, defendants moved to dismiss plaintiffs’ 

complaint as barred by attorney immunity under Texas law. The district court 

denied that motion, holding that plaintiffs’ allegations met a “fraud exception” 

to attorney immunity, and defendants appealed.

United States Court of Appeals

Fifth Circuit

FILED

March 10, 2016

Lyle W. Cayce

Clerk

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We are now confronted with two issues. First, under Texas law, is 

attorney immunity a true immunity of suit, such that denial of a motion to 

dismiss based on attorney immunity is appealable under the collateral order 

doctrine? Second, should we reverse the district court’s order denying 

defendants’ motions to dismiss based on attorney immunity now that the Texas 

Supreme Court has clarified that there is no “fraud exception” to attorney 

immunity? 

For the reasons below, we answer both questions in the affirmative.

I.

As a partner at the law firm of Chadbourne & Parke LLP, and later at 

Proskauer Rose LLP, Thomas Sjoblom represented certain companies 

(collectively, “Stanford Financial”) that Stanford used to perpetrate his 

scheme. Plaintiffs are various entities and individuals who purchased 

certificates of deposit (“CDs”) issued by Stanford Financial; those CDs, 

plaintiffs allege, are now worthless. Plaintiffs believe that Sjoblom, while 

acting as “outside counsel to represent the interests of Stanford 

Financial . . . in the SEC investigation,” helped to cover up Stanford’s scheme 

by thwarting that investigation in certain ways. 

As a result, plaintiffs filed this putative class action against Sjoblom, 

Chadbourne & Parke, and Proskauer Rose,1 asserting claims for (a) aiding and 

abetting violations of the Texas Securities Act, (b) aiding and abetting common 

law fraud, and (c) conspiring to defraud the putative class. Plaintiffs base their 

claims entirely on the following acts Sjoblom allegedly committed during his 

representation of Stanford Financial in the SEC investigation:

• Sending a letter to the SEC arguing that the SEC did not have 

jurisdiction over Stanford Financial’s CD sales because the CDs 

were not securities under U.S. law;

 

1 Plaintiffs claim that the law firms are liable under a respondeat superior theory.

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• Making certain statements to the SEC regarding its document 

requests to Antigua (where Stanford Financial was based) and 

regarding Stanford Financial’s credibility and legitimacy;

• Stating to SEC lawyers that certain of Stanford Financial’s 

executives were better positioned to explain, in depositions, the 

details of Stanford Financial’s business; and

• Failing to correct purported lies and suborning perjury during a 

Stanford Financial executive’s sworn SEC testimony.

Defendants moved to dismiss plaintiffs’ complaint on several grounds, 

including that it was precluded by the Securities Litigation Uniform Standards 

Act (“SLUSA”) and that defendants were entitled to attorney immunity under 

Texas law. Without reaching the attorney immunity argument, the district 

court dismissed the complaint as precluded by SLUSA. We reversed, see 

Roland v. Green, 675 F.3d 503 (5th Cir. 2012), and the Supreme Court affirmed 

that reversal, see Chadbourne & Parke LLP v. Troice, 134 S. Ct. 1058 (2014).

On remand, the district court denied defendants’ motions to dismiss, in 

which defendants argued that they were immune from suit under the attorney 

immunity doctrine. Troice v. Proskauer Rose, LLP, No. 3:90-CV-1600-N, 2015 

WL 1219522 (N.D. Tex. Mar. 4, 2015). The district court held that plaintiffs 

had sufficiently pleaded a “fraud exception” to attorney immunity by asserting 

a “colorable claim for fraud,” and denied the motions to dismiss. Id. at *4. 

Defendants moved for reconsideration, but the district court denied those 

motions as well. Defendants appealed. Plaintiffs then moved to dismiss the

appeal, arguing that the district court’s order denying the motions to dismiss 

is not an appealable collateral order. That motion was carried with the case.

The day after plaintiffs moved to dismiss the appeal—about a month 

after defendants appealed—the Texas Supreme Court held that “[f]raud is not 

an exception to attorney immunity” under Texas law. Cantey Hanger, LLP v. 

Byrd, 467 S.W.3d 477, 484 (Tex. 2015). Thus, “[m]erely labeling an attorney’s 

conduct ‘fraudulent’ does not and should not remove it from the scope of client 

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representation or render it ‘foreign to the duties of an attorney’” such that the 

attorney would not be immune. Id. at 483. Defendants therefore argue that 

because the Texas Supreme Court has now clarified that there is no fraud 

exception to attorney immunity, the district court erred by applying such an 

exception. 

II.

We review de novo a district court’s denial of a motion to dismiss based 

on immunity. See Doe v. Robertson, 751 F.3d 383, 386 (5th Cir. 2014). We also 

review de novo a district court’s interpretation of state law. Am. Bankers Ins. 

Co. of Fla. v. Inman, 436 F.3d 490, 492 (5th Cir. 2006). We are “bound to answer 

the question the way the state’s highest court would resolve the issue.” 

Occidental Chem. Corp. v. Elliott Turbomachinery Co., 84 F.3d 172, 175 (5th 

Cir. 1996). 

III.

Plaintiffs moved to dismiss this appeal, arguing that the district court’s 

order denying defendants’ motions to dismiss is not an appealable collateral 

order. The collateral order doctrine permits appeals from orders that are 

deemed final under 28 U.S.C. § 1291 because they “(1) conclusively determine 

the disputed question; (2) resolve an issue that is completely separate from the 

merits of the action; and (3) would be effectively unreviewable on appeal from 

a final judgment.” Walker v. U.S. Dep’t of Hous. & Urban Dev., 99 F.3d 761, 

766 (5th Cir. 1996). Only the third element, reviewability, is implicated here 

because it is undisputed that the order conclusively determines the question of 

immunity and is separate from the merits of the action. And “orders denying 

certain immunities are strong candidates for prompt appeal under § 1291.” 

Dig. Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 871 (1994).

Whether the district court’s order here would be effectively unreviewable 

on appeal from final judgment depends on whether attorney immunity in 

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Texas “provides a true immunity from suit and not a simple defense to 

liability.” Sorey v. Kellett, 849 F.2d 960, 962 (5th Cir. 1988); see, e.g., McMahon 

v. Presidential Airways, Inc., 502 F.3d 1331, 1339 (11th Cir. 2007) (querying 

whether defendants claiming immunity have “a substantial claim to a true 

immunity from suit: i.e., an immunity that not only insulates the party from 

liability, but also prevents the party from being exposed to discovery and/or 

trial”).2 “[I]t is not mere avoidance of a trial, but avoidance of a trial that would 

imperil a substantial public interest, that counts when asking whether an 

order is ‘effectively’ unreviewable if review is to be left until later.” Will v. 

Hallock, 546 U.S. 345, 353 (2006). And “[a]lthough appellate jurisdiction under 

§ 1291 is a matter of federal law, we look to state law to determine whether the 

basis of [defendants’] claim is properly characterized as an immunity from suit 

or merely a defense to liability.” Shanks v. AlliedSignal, Inc., 169 F.3d 988, 992 

(5th Cir. 1999).

Although the Texas Supreme Court has never stated as much, attorney 

immunity is properly characterized as a true immunity from suit, not as a 

defense to liability. Two related considerations inform this conclusion: the 

policies underlying the doctrine of attorney immunity, and comparison with 

similar Texas-law doctrines that we have held to be true immunities.

The policies underlying the attorney immunity doctrine, as the Texas 

Supreme Court has explained, suggest that attorney immunity should be an 

 

2 Orders denying immunity “are immediately appealable only if they are predicated 

on pure conclusions of law, and not if a ‘genuine issue of material fact’ precludes summary 

judgment” on the question of immunity. Coleman v. Hous. Indep. Sch. Dist., 113 F.3d 528, 

531 (5th Cir. 1997). But an order denying immunity “at the 12(b)(6) stage, where the district 

court must assume that factual allegations are true, is a ‘purely legal’ denial 

of . . . immunity.” Bullard v. City of Hous., 95 F.3d 48, 1996 WL 405777, at *1 n.2 (5th Cir. 

1996) (unpublished). Here, the district court denied defendants’ motions to dismiss—thus 

accepting plaintiffs’ allegations as true—so we need only determine whether defendants are 

entitled to immunity as a matter of law.

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immunity from suit. Cf. Sorey, 849 F.2d at 963. The doctrine “stem[s] from the 

broad declaration . . . that ‘attorneys are authorized to practice their 

profession, to advise their clients and interpose any defense or supposed 

defense, without making themselves liable for damages.’” Cantey Hanger, 467 

S.W.3d at 481 (quoting Kruegel v. Murphy, 126 S.W. 343, 345 (Tex. Civ. App.—

Dallas 1910, writ ref’d)). In other words, the doctrine is “intended to ensure 

‘loyal, faithful, and aggressive representation by attorneys employed as 

advocates.’” Id. (quoting Mitchell v. Chapman, 10 S.W.3d 810, 812 (Tex. App.—

Dallas 2000, pet. denied)). Attorney immunity is necessary “to avoid the 

inevitable conflict that would arise if [an attorney] were ‘forced constantly to 

balance his own potential exposure against his client’s best interest.’” Id. at 

483 (quoting Alpert v. Crain, Caton & James, PC, 178 S.W.3d 398, 405 (Tex.

App.—Houston [1st Dist.] 2005, pet. denied)). 

The purpose for attorney immunity is thus quite similar to the purposes 

animating other immunities that Texas has recognized as providing true 

immunity. See, e.g., B.K. v. Cox, 116 S.W.3d 351, 358 (Tex. App.—Houston 

[14th Dist.] 2003, no pet.) (judicial immunity); Miller v. Curry, 625 S.W.2d 84, 

87 (Tex. App.—Forth Worth 1981, writ ref’d n.r.e.) (prosecutorial immunity); 

see also Reagan v. Guardian Life Ins. Co., 166 S.W.2d 909, 912 (Tex. 1942) 

(litigation privilege). All share an objective of safeguarding the unfettered 

exercise of judgment in the judicial system by protecting the person exercising 

it not only against liability but also against incurring the costs of defending a 

lawsuit. All therefore protect against imperiling “a substantial public interest”: 

the effective functioning of our adversary system. Will, 546 U.S. at 353.

Nothing indicates that Texas courts view the protections afforded attorneys in 

private practice as less important to that system than those afforded 

prosecutors, judges, and those making statements before judicial, quasijudicial, or legislative proceedings. 

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Also instructive is our own analysis of whether orders denying motions 

to dismiss based on Texas’s litigation privilege are appealable. In Shanks, we

concluded that the litigation privilege provided true immunity under Texas 

law and, thus, orders denying that immunity were appealable. 169 F.3d 988. 

There, we described as a “near perfect response to the jurisdictional inquiry” a 

Texas court’s description of privileged communications as “not actionable.” Id. 

at 992. We also noted another Texas court’s description of the doctrine as 

providing “absolut[e] immun[ity] from civil liability.” Id. The Texas Supreme 

Court has described attorney immunity in the very same terms: Conduct 

covered by attorney immunity is “not actionable,” and the doctrine provides 

“immun[ity] from civil liability.” Cantey Hanger, 467 S.W.3d at 481. Those 

descriptions, too, are near perfect responses to our jurisdictional inquiry. 

Plaintiffs counter that attorney immunity is not a true immunity from 

suit because it is an affirmative defense. But describing something as an 

affirmative defense simply indicates who bears the burden of proof; it does not 

indicate that it is a simple defense to liability. See, e.g., Fontenot v. Upjohn Co., 

780 F.2d 1190, 1194 (5th Cir. 1986). Indeed, other true immunities are also 

affirmative defenses under Texas law. See, e.g., City of Lancaster v. Chambers, 

883 S.W.2d 650, 653 (Tex. 1994) (qualified immunity); B.K., 116 S.W.3d at 356 

(judicial immunity). 

Plaintiffs also argue that attorney immunity is not a true immunity 

because it does not exempt defendants from discovery. In support, they cite 

McClendon v. City of Columbia, 305 F.3d 314 (5th Cir. 2002) (en banc) (per 

curiam). There, the en banc court stated that because qualified immunity is an 

immunity from suit, it is intended to confer “a right not merely to avoid 

standing trial, but also to avoid the burdens of ‘such pretrial matters as 

discovery.’” Id. at 323 (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). 

Plaintiffs thus argue that because in Texas, no court has held that an attorney 

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defendant can avoid discovery, attorney immunity is not a true immunity. But 

in McClendon, the en banc court was merely describing how immunity from 

suit normally operates, not creating a test for whether something is a true 

immunity. 

What is more, even defendants asserting qualified immunity often must 

respond to discovery to help the court resolve factual disputes in order to 

determine whether they are entitled to qualified immunity. Discovery is surely 

“to be avoided if possible,” but defendants asserting qualified immunity are 

not, as a rule, categorically exempt. Mitchell, 472 U.S. at 526; see id. (“Even if 

the plaintiff’s complaint adequately alleges the commission of acts that 

violated clearly established law, the defendant is entitled to summary 

judgment if discovery fails to uncover evidence sufficient to create a genuine 

issue as to whether the defendant in fact committed those acts.”). Our 

precedents reflect that principle: Orders denying immunity are immediately 

appealable if based on conclusions of law; orders denying immunity because of 

a genuine dispute of fact are not, and defendants in such cases must submit to 

some discovery. Coleman v. Hous. Indep. Sch. Dist., 113 F.3d 528, 531 (5th Cir. 

1997); see Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012) (“After the 

district court finds a plaintiff has so pled, if the court remains ‘unable to rule 

on the immunity defense without further clarification of the facts,’ it may issue 

a discovery order ‘narrowly tailored to uncover only those facts needed to rule 

on the immunity claim.’” (quoting Lion Boulos v. Wilson, 834 F.2d 504, 507-08 

(5th Cir. 1987))). That no Texas court has held that defendants asserting 

attorney immunity are categorically exempt from discovery, then, does not 

mean that attorney immunity is merely a defense to liability.

In short, because the policies underlying attorney immunity support the 

conclusion that Texas courts seek to protect attorneys against even defending 

a lawsuit, and because Texas courts describe conduct covered by attorney 

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immunity as not actionable (and attorneys engaging in that conduct as 

immune from suit), we conclude that the Texas Supreme Court would consider 

attorney immunity to be a true immunity from suit. As a result, we hold that 

the district court’s order denying defendants’ motions to dismiss on the basis 

of attorney immunity under Texas law is an appealable collateral order. 

IV.

We now turn to the merits. Defendants argue that the Texas Supreme 

Court’s decision in Cantey Hanger shows that the district court erred in 

denying their motions to dismiss based on attorney immunity. 467 S.W.3d 477. 

Lacking the Texas Supreme Court’s recent guidance, the district court relied 

on decisions from Texas intermediate appellate courts to hold that “all a 

plaintiff must do to avoid immunity is assert a colorable claim for fraud.” 

Troice, 2015 WL 1219522, at *4. A few months later, the Texas Supreme Court 

held in Cantey Hanger that “[f]raud is not an exception to attorney immunity; 

rather, the defense does not extend to fraudulent conduct that is outside the 

scope of an attorney’s legal representation of his client, just as it does not 

extend to other wrongful conduct outside the scope of representation.” 467 

S.W.3d at 484. 

As the United States Supreme Court has explained, we “conform [our] 

orders to the state law as of the time of the entry. Intervening and conflicting 

decisions will thus cause the reversal of judgments which were correct when 

entered.” Vandenbark v. Owens-Illinois Glass Co., 311 U.S. 538, 543 (1941).

Thus, we must apply Cantey Hanger here. Defendants contend that, because 

Cantey Hanger makes clear that the fraud exception does not exist, they should 

have been granted attorney immunity because “the type of conduct alleged falls 

squarely within the scope of [Sjoblom’s] representation” of his clients. Cantey 

Hanger, 467 S.W.3d at 485. We agree. 

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Indeed, Plaintiffs do not dispute before this court that Sjoblom’s alleged 

conduct was “the kind of conduct in which an attorney engages when 

discharging his duties to his client.” Id. at 482. Nor could they credibly do so.

Plaintiffs alleged that, in representing Stanford Financial in the SEC’s 

investigation, Sjoblom: sent a letter arguing, using legal authorities, that the 

SEC did not have jurisdiction; communicated with the SEC about its document 

requests and about Stanford Financial’s credibility and legitimacy; stated that 

certain Stanford Financial executives would be more informative deponents 

than others; and represented a Stanford Financial executive during a 

deposition. These are classic examples of an attorney’s conduct in representing 

his client. That some of it was allegedly wrongful, or that he allegedly carried 

out some of his responsibilities in a fraudulent manner, is no matter. Cantey 

Hanger, 467 S.W.3d at 485 (“Byrd essentially complains that the manner in 

which Cantey Hanger carried out a specific responsibility assigned to it” was 

wrongful, but “[m]eritorious or not, the type of conduct alleged falls squarely 

within the scope of [the] representation.”); see also Alpert, 178 S.W.3d at 406 

(“The immunity focuses on the type of conduct, not on whether the conduct was 

meritorious in the context of the underlying lawsuit.”). In other words, we do 

not conclude that Sjoblom’s actions “d[id] not involve the provision of legal 

services,” Cantey Hanger, 467 S.W.3d at 482, or that he engaged in acts that 

were “entirely foreign to the duties of an attorney,” Poole v. Hous. & T.C. Ry. 

Co., 58 Tex. 134, 137 (Tex. 1882). 

Plaintiffs counter that, even if Sjoblom’s alleged conduct fell within the 

scope of his representation of Stanford Financial and even if there is no fraud 

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exception to attorney immunity, defendants still are not entitled to attorney 

immunity. In support, plaintiffs make three arguments.3 Each fails.

First, plaintiffs contend that attorney immunity applies only against 

party opponents, not third parties like plaintiffs. Yet in support, plaintiffs 

simply cite cases applying immunity against party opponents. Those cases do 

not rule out that immunity applies against other parties, and several of them

expressly contemplate the possibility, describing attorney immunity as 

applying against “non-clients.” See, e.g., Alpert, 178 S.W.3d at 405. Further, in

Cantey Hanger itself, the Texas Supreme Court repeatedly described attorney 

immunity as “protecting attorneys from liability to non-clients.” 467 S.W.3d at 

481 (emphasis added). Attorney immunity is intended to assure attorneys that 

they will not be “liable for damages,” full stop, not that they are protected from 

liability but only from opposing parties. Kruegel, 126 S.W. at 345. The idea is 

to immunize conduct, not to protect attorneys only from certain potential 

plaintiffs. Other Texas cases support our conclusion that plaintiffs’ proposed 

rule does not exist. See, e.g., Easton v. Phelan, No. 01-10-01067-CV, 2012 WL 

1650024, at *10 (Tex. App.—Houston [1st Dist.] May 10, 2012, no pet.). We 

therefore reject plaintiffs’ argument that, under Texas law, attorneys are 

entitled to immunity only against party opponents.

Second, plaintiffs argue that attorney immunity applies only in the 

litigation context, and thus Sjoblom’s conduct is not covered. We do not reach 

this argument because plaintiffs waived it by not raising it below. See, e.g., 

VRC LLC v. City of Dallas, 460 F.3d 607, 612 (5th Cir. 2006) (deeming 

argument raised by appellee for the first time on appeal waived); Woodmen of 

 

3 In a 28(j) letter, plaintiffs argued for the first time that attorney immunity does not 

apply to their Texas Securities Act claims. Plaintiffs waived this argument by failing to brief 

it. See, e.g., Little v. USAA Cas. Ins. Co., No. 09-30948, 2010 WL 4909869, at *4 n.6 (5th Cir. 

Apr. 2, 2010) (per curiam) (refusing to address argument first raised in 28(j) letter).

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World Life Ins. Soc’y/Omaha Woodmen Life Ins. Soc’y v. JRY, 320 F. App’x 

216, 221 (5th Cir. 2009) (same). 

Third, plaintiffs maintain that Sjoblom’s alleged conduct falls within a 

“crime exception” to attorney immunity. Plaintiffs waived this argument as 

well by not raising it before the district court. See City of Dallas, 460 F.3d at 

612. Below, they argued only that Sjoblom’s alleged “illegal or fraudulent” 

conduct met a fraud exception to attorney immunity. But plaintiffs did not 

identify illegal conduct as fitting a “crime exception” distinct from the fraud 

exception under Texas law.

V.

Below, the district court refused to grant defendants immunity under the 

attorney immunity doctrine solely because plaintiffs pleaded that Sjoblom had 

engaged in fraud and conspiracy to commit fraud. Troice, 2015 WL 1219522, 

at *3; see id. at *4 (noting language in Texas cases “indicating that all a 

plaintiff must do to avoid immunity is assert a colorable claim for fraud”). The 

Texas Supreme Court has now clarified that simply claiming that an attorney’s 

conduct was fraudulent does not allow plaintiffs to circumvent attorney 

immunity. Cantey Hanger, 467 S.W.3d at 484. Accordingly, we REVERSE the 

district court’s order denying defendants’ motions to dismiss and RENDER

judgment that the case is dismissed with prejudice.

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