IN THE SUPREME COURT OF TEXAS

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No. 20-0066 

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HAYNES AND BOONE, LLP AND ARTHUR L. HOWARD, PETITIONERS, 

v. 

NFTD, LLC F/K/A BERNARDO GROUP, LLC, BERNARDO HOLDINGS, LLC, PETER J.

COOPER, AND JACQUELINE MILLER, RESPONDENTS

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ON PETITION FOR REVIEW FROM THE

COURT OF APPEALS FOR THE FOURTEENTH DISTRICT OF TEXAS

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Argued March 23, 2021 

JUSTICE BOYD delivered the opinion of the Court. 

JUSTICE HUDDLE did not participate in the decision. 

In a series of cases over the last several years, including another case we decide today,1 we 

have been called upon to define more precisely the scope of the attorney-immunity defense. 

Because each of those cases complained of an attorney’s litigation-related conduct, we did not 

decide whether the defense applies to claims based on an attorney’s conduct outside of litigation, 

such as conduct in connection with a business transaction. This case requires us to decide that 

issue. We hold that attorney immunity applies in all adversarial contexts in which an attorney has 

a duty to zealously and loyally represent a client, including a business-transactional context, but 

only when the claim against the attorney is based on the “kind” of conduct attorney immunity 

1 See Landry’s, Inc. v. Animal Legal Def. Fund, — S.W.3d — (19-0036) (May 21, 2021). 
2 

protects. Because the court of appeals held otherwise, we reverse and remand the case to that court 

for it to address additional issues it did not reach. 

I. 

Background 

By at least one account,2 anyone who appreciates a classy pair of women’s sandals has 

Italian architect Bernard Rudofsky to thank. After “inventing” the modern-day sandal and 

founding the Bernardo company in the 1940s, Rudofsky went on to produce “the most talkedabout shoes of their day.”3

 By the 1960s, Bernardo sandals were reportedly everywhere, from the 

pages of Vogue Magazine and Harper’s Bazaar to the feet of Jackie Kennedy.4 But after the 1970s, 

the Bernardo brand began a slow and steady decline. 

In 2001, Roy Smith, Jr., his wife Wilma “Jean” Smith, and designer Dennis Comeau 

purchased the Bernardo brand assets through a company they created called TEFKAB Footwear, 

LLC. Unfortunately, Roy Jr. died the following year, leaving his interest in the company to his 

adult children, Cynthia Smith and Roy R. “Trae” Smith, III. Trae took over as TEFKAB’s 

manager, and by the mid-2000s, Bernardo sandals were back—back in the Neiman Marcus 

catalog, back in over 800 stores around the world, and back on the feet of the rich and famous, 

such as Halle Berry, Reese Witherspoon, and Beyoncé.5 

2 See BERNARDO 1946, About, https://bernardo1946.com/pages/new-about (last visited May 12, 2021). 

3

 Clifford Pugh, Bernardo shoes make a comeback, HOUS. CHRON. (Aug. 26, 2007), 

https://www.chron.com/life/article/Bernardo-shoes-make-a-comeback-1641468.php. 

4

Id.; see also Troy Patterson, The Essay to Read if You Even Think About Wearing Clothes, THE NEW 

YORKER (July 11, 2019), https://www newyorker.com/culture/cultural-comment/the-essay-to-read-if-you-even-thinkabout-wearing-clothes; Carol Kino, Are Clothes Modern?, The N.Y. TIMES (Feb. 24, 2008), 

https://archive.nytimes.com/query nytimes.com/gst/fullpage-9F00E7D91E39F937A15751C0A96E9C8B63 html 

(“Jackie Kennedy was said to own 16 colors of the same pair.”). 

5

 Pugh, supra note 3. 
3 

Under Trae’s leadership, TEFKAB sued a number of competitors for infringing on 

Bernardo’s patents, including five patents at issue in the underlying litigation here.6 During that 

litigation, however, the company concluded that its patents were invalid because Bernardo’s patent 

attorneys had missed the filing deadlines. TEFKAB dismissed the patent suits and instead sued its 

patent attorneys in a Maryland state court, alleging that the attorneys’ malpractice rendered the 

patents “unenforceable” and “worthless.” TEFKAB never notified the United States Patent and 

Trademark Office that the patents were invalid. 

By 2008, Trae’s co-owners had lost confidence in his leadership. In 2009, they hired 

attorney Arthur “Arty” Howard, then a partner at Haynes and Boone, to handle the process of 

removing Trae from his position as TEFKAB’s manager. Acting as TEFKAB’s attorney, Howard 

terminated Trae. That same day, the company announced that it had hired Howard and his firm to 

represent the company in all of its “business, financial and legal matters.” 

Over the next several months, Howard and others at Haynes and Boone billed a lot of hours 

to the company, and TEFKAB quickly fell behind on paying their invoices. Around this time, 

Howard conducted an internal investigation and produced a lengthy report addressing Trae’s 

management and other areas of concern. Through the investigation and through other sources, 

Howard learned that TEFKAB had sued the Maryland patent lawyers for malpractice. He claims 

he never “read any pleadings in that case,” “[h]ad no understanding” about the lawsuit, and “had 

no knowledge of [the patents] being worthless or unenforceable or invalid.” Other evidence, 

however, seems to clearly contradict these assertions. 

6

 The patents were for five Bernardo sandals: the Milly (patent no. D495,855), Mistral (D496,147), Matrix 

(D508,305), Miami (D487,183), and Miami Woven (D489,517). 
4 

In 2010, TEFKAB’s owners decided to sell the Bernardo brand assets and commissioned 

Howard to handle the sale. To assist with the sale, Howard prepared a “Confidential Business 

Profile,” describing the company and its assets. The profile asserted that TEFKAB consistently 

developed, protected, and defended its intellectual property and that its patents bore “significant” 

value. It specifically listed the five patents now at issue, without mentioning the Maryland lawsuit 

or any concerns that those patents were invalid or “worthless.” 

Cynthia Smith mentioned TEFKAB’s interest in selling the Bernardo brand assets to her 

old college friend, Peter J. Cooper. Cooper and his business partner, Todd Miller, were interested 

in buying the assets, and they formed four companies—NFTD, LLC, Bernardo Group, LLC, 

Bernardo Holdings, LLC, and Cooper Miller, LLC (collectively, NFTD)—to make the purchase. 

Like Cynthia and Cooper, Howard and Miller had a prior relationship and were friends. Miller and 

Cooper now assert that, throughout the ensuing negotiation process, Howard made several 

misrepresentations to them regarding the Bernardo brand assets and regarding other interested 

buyers. They also assert that Howard took advantage of his friendship with Miller and improperly 

tried to convince them to hire Howard once NFTD purchased the assets, even though he was then 

still representing TEFKAB. 

NFTD purchased the Bernardo brand assets from TEFKAB in 2011. In addition to paying 

a lump sum at closing, NFTD agreed to pay specified “earn-out payments” to be calculated based 

on the brand’s success under NFTD’s ownership. The parties dispute whether or the extent to 

which the written asset-purchase agreement represents and warrants that the Bernardo patents were 

valid and enforceable, but the agreement does not disclose that the previous patent-enforcement 

litigation or the Maryland malpractice suit raised questions about the patents. Although NFTD 
5 

engaged lawyers to conduct due diligence into TEFKAB’s intellectual property, Cooper and Miller 

assert that they never learned that the five patents were invalid. They also assert that if Howard 

had told them that there were problems with the patents, they would have ceased all negotiations, 

“would not have gone through with” the purchase, and “[t]here would have been no deal.” After 

NFTD purchased the Bernardo brand assets from TEFKAB, it hired Howard to handle the process 

of registering the Bernardo patents. 

Three years later, in 2014, Cooper and Miller decided to sell the Bernardo brand assets. At 

that time, however, NFTD still owed TEFKAB some earn-out payments under the 2011 purchase 

agreement, so Cooper and Miller approached TEFKAB about settling those liabilities to make it 

easier to sell the assets. Howard—who had since moved to a new law firm—represented TEFKAB 

in those negotiations. Ultimately, in 2015, the parties reached a settlement and NFTD released all 

claims it might have against TEFKAB or against Howard and his firm. 

Meanwhile, in February 2014, NFTD sold the Bernardo brand assets to a company called 

JPT Group, LLC. As part of this transaction, NFTD signed an agreement expressly representing 

that all of the Bernardo patents were “valid and enforceable.” Seven months later, JPT Group filed 

suit against a competitor for infringing on the Bernardo patents, only to conclude (as Trae and 

TEFKAB had concluded years earlier) that the patents were invalid. Although the record does not 

describe the outcome of JPT Group’s patent-infringement suit, JPT Group sued NFTD for 

breaching their asset-purchase agreement and the warranties provided in that agreement. 

In response to JPT Group’s suit, NFTD asserted third-party claims against TEFKAB for 

breach of contract and warranties, fraudulent inducement, and intentional and negligent 

misrepresentations, alleging that TEFKAB knew that the patents were invalid when it sold the 
6 

assets to NFTD in 2011. NFTD then also added Howard and Haynes and Boone as third-party 

defendants,7 alleging that they too knew that the patents were invalid and asserting claims for 

negligence, gross negligence, negligent misrepresentation, breach of fiduciary duty, fraud, and 

fraud in the inducement.8 TEFKAB then filed cross-claims for legal malpractice against Howard 

and Haynes and Boone.9 

Ultimately, JPT Group, NFTD, and TEFKAB arbitrated or otherwise settled and dismissed 

all of the claims between them. Howard and Haynes and Boone, however, still faced both legalmalpractice claims asserted by their former client, TEFKAB, and a variety of negligence, fraud, 

and misrepresentation claims asserted by NFTD, which they did not represent during the 2011 

transaction. The trial court severed the legal-malpractice claims (all claims “arising out of the 

attorney-client relationship”), leaving only NFTD’s claims against Howard and Haynes and Boone 

“not arising out of the attorney-client relationship.” 

Howard and Haynes and Boone then moved for summary judgment, arguing that the 

attorney-immunity defense applies and bars all of the remaining claims. Citing this Court’s opinion 

in Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477 (Tex. 2015), they argued that attorney immunity 

bars NFTD’s claims because the claims are based on actions Howard and Haynes and Boone took 

within the scope of their representation of TEFKAB, in opposition to NFTD’s interests. In 

7

 NFTD also named Howard’s new law firm, K&L Gates, as a third-party defendant, but the record is unclear 

about the resolution of those claims, and K&L Gates is not a party to this appeal. 

8

 NFTD later added claims for fraud by nondisclosure, aiding and abetting fraud, and negligent omissions. 

9

 An investor in NFTD, Jacqueline Miller, also intervened in the action, asserting claims against TEFKAB, 

Howard, and Haynes and Boone for fraud, negligent misrepresentation, and civil conspiracy. She “incorporate[d] and 

fully adopt[ed]” NFTD’s brief in the court of appeals as well as NFTD’s brief as respondent in this Court. We will 

refer to NFTD and Ms. Miller collectively as NFTD. 
7 

response, NFTD argued that attorney immunity does not apply because Howard’s conduct did not 

occur within a litigation context, and even if it does apply in a non-litigation context, not all of 

Howard’s wrongful conduct fell within his duties as TEFKAB’s lawyer. The trial court granted 

summary judgment in favor of Howard and Haynes and Boone and dismissed all the claims against 

them.10 

NFTD appealed. The court of appeals reversed the trial court’s summary judgment, holding 

that attorney immunity does not “extend . . . beyond the litigation context” and “should not be 

extended to a business transaction.” 591 S.W.3d 766, 773 (Tex. App.—Houston [14th Dist.] 2019). 

We granted Howard and Haynes and Boone’s petition for review to address whether the attorneyimmunity defense applies to a non-client’s claims that are based on an attorney’s conduct 

performed outside of the litigation context.11 

II. 

Jurisdiction 

As always, we must first determine whether we have jurisdiction to decide this case. 

Although the parties do not raise this issue, we must consider it sua sponte when our jurisdiction 

seems in doubt. State ex rel. Best v. Harper, 562 S.W.3d 1, 7 (Tex. 2018). Here, our doubt arises 

from the fact that NFTD’s claims depend on its assertion that the Bernardo brand patents are 

10 Shortly before the summary-judgment hearing, NFTD amended its petition to assert a new negligentmisrepresentation claim. After the trial court granted summary judgment, Howard and Haynes and Boone filed a plea 

to the jurisdiction, arguing that attorney immunity also bars NFTD’s newly filed claim. The trial court agreed and 

granted the plea. 

11 The Court has received amicus curiae briefs from law firm Reid Collins & Tsai LLP and Professor Robert 

P. Schuwerk in support of NFTD and from attorney Richard G. Wilson and a consortium of fifty Texas law firms in 

support of Howard and Haynes and Boone. 
8 

invalid and unenforceable. If the patents are valid and enforceable, Howard’s alleged 

misrepresentations were not misrepresentations at all. 

Federal law provides: “No State court shall have jurisdiction over any claim for relief 

arising under any Act of Congress relating to patents . . . .” 28 U.S.C. § 1338(a). A claim based on 

federal law—like the patent-infringement suit TEFKAB filed in the 2000s—clearly “arises under” 

federal patent law, but state-law claims may also arise under federal law under section 1338 and 

deprive Texas courts of jurisdiction. See Gunn v. Minton, 568 U.S. 251, 257–58 (2013). To fall 

within this “slim category” of state-law-based claims that “arise under” federal law, the claim must 

involve a federal-law issue that is “(1) necessarily raised, (2) actually disputed, (3) substantial, and 

(4) capable of resolution in federal court without disrupting the federal-state balance approved by 

Congress.” Id. at 258. 

In Gunn, the Supreme Court held that a legal-malpractice claim in which a client accused 

his lawyers of failing to raise an argument in an unsuccessful patent-infringement case did not 

arise under federal law, even though resolution of a federal issue (whether the argument would 

have prevailed to validate the patent) was “necessary” to the case and the parties actually disputed 

that issue. Id. at 259. Although the claim thus met the first two requirements, the Court concluded 

that the federal issue was not “substantial” because its resolution in the malpractice case was not 

important “to the federal system as a whole.” Id. at 260. In reaching this conclusion, the Court 

reasoned that the federal issue regarding the patent’s validity was merely “hypothetical,” in that, 

regardless of whether the client prevailed on the malpractice claim, the patent would “remain 

invalid” under federal law, based on the federal court’s judgment in the earlier patent-infringement 

suit. Id. at 261. 
9 

Under this reasoning, the Court concluded that “state legal malpractice claims based on 

underlying patent matters will rarely, if ever, arise under federal patent law for purposes of section 

1338(a)” because “those cases are by their nature unlikely to have the sort of significance for the 

federal system necessary to establish jurisdiction.” Id. at 258–59. And because states “have ‘a 

special responsibility for maintaining standards’” governing attorneys and other “members of the 

licensed professions,” the Court concluded that the “hypothetical” issue of the patent’s validity did 

not satisfy the fourth requirement of being “capable of resolution in federal court without 

disrupting the federal-state balance approved by Congress.” Id. at 264 (quoting Ohralik v. Ohio 

State Bar Ass’n, 436 U.S. 447, 460 (1978)). The Court thus refused to conclude “that Congress—

in establishing exclusive federal jurisdiction over patent cases—meant to bar from state courts 

state legal malpractice claims simply because they require resolution of a hypothetical patent 

issue.” Id. 

Here, as in Gunn, the question of whether the Bernardo patents are valid and enforceable 

is “necessary” to the resolution of NFTD’s fraud and misrepresentation claims against Howard 

and Haynes and Boone. See, e.g., Barrow-Shaver Res. Co. v. Carrizo Oil & Gas, Inc., 590 S.W.3d 

471, 496 (Tex. 2019) (noting fraud claim requires showing that defendant “made a false, material 

representation”); McCamish, Martin, Brown & Loeffler v. F.E. Appling Ints., 991 S.W.2d 787, 791 

(Tex. 1999) (noting negligent-misrepresentation claim requires showing that defendant “supplie[d] 

false information”) (quoting RESTATEMENT (SECOND) OF TORTS § 552(1) (Am. Law Inst. 1977)). 

And as in Gunn, Howard and Haynes and Boone actually dispute whether the Bernardo patents 

are in fact invalid and unenforceable. Although they do not vigorously contend in this Court that 

the patents are valid, they consistently avoid conceding that they are. 
10 

But unlike Gunn, we cannot determine from the record or the parties’ briefing whether a 

federal court, or any other court, has actually found that the Bernardo patents are invalid and 

unenforceable. According to the record and briefs, TEFKAB voluntarily dismissed the patentinfringement suit it originally filed in federal court. TEFKAB asserted in the trial court that the 

jury in the legal-malpractice suit it filed in Maryland state court found that only one of the five 

Bernardo patents was invalid, while Howard and Haynes and Boone assert that TEFKAB did not 

recover damages in that suit and refer to it as “unsuccessful” litigation. And the record does not 

reflect the outcome of the patent-infringement suit JPT Group later filed in federal court, other 

than to reflect that JPT Group settled that suit after it “discovered” that the patents were invalid, 

leading it to file suit against NFTD. In short, the record does not reveal whether any federal court 

or federal administrative body has actually ruled on the Bernardo patents’ validity. 

In Gunn, the United States Supreme Court concluded that the issue of the validity of the 

patent in that case was not “substantial,” in part because the federal courts had already determined 

that the patent was invalid and no resolution in the legal-malpractice case could undermine that 

determination. 568 U.S. at 261. But here, we cannot tell whether any federal court has actually 

ruled on the Bernardo patents’ validity. Federal authorities, unfortunately, appear to be inconsistent 

on whether the issue of a patent’s validity is “substantial” in a state-law case like this one, which 

depends on the resolution of that issue but offers no evidence that a federal court has yet made that 

determination. See Paul Gugliuzza, Rising Confusion About “Arising Under” Jurisdiction in 

Patent Cases, 69 EMORY L.J. 459, 485–86 (2019) (discussing federal cases and other patent-law 

authorities). 
11 

We conclude that, at least under these facts as presented to us, the issue of the Bernardo 

patents’ validity is not sufficiently important “to the federal system as a whole” to make the issue 

“substantial” for purposes of federal jurisdiction under section 1338. Gunn, 568 U.S. at 260. The 

Supreme Court explained in Gunn that what makes an issue “substantial” is the federal 

government’s “direct interest in the availability of a federal forum to vindicate its own 

administrative action.” Id. at 260–61. And that interest is not implicated by a state-court case that 

cannot change the “real-world result” of whether a patent is or is not valid. Id. at 261. Should it 

ever become necessary, the question of whether the Bernardo patents are valid may be “decided 

by a federal court in the context of an actual patent case, with review in the Federal Circuit,” and 

those courts will not be bound by any finding in this case. Id. at 262. The finding in this case will 

be “fact-bound and situation-specific,” affecting only the parties here, and such “effects are not 

sufficient to establish federal arising under jurisdiction.” Id. at 263. 

We conclude that this case does not present the kind of “substantial” federal-law issue that 

supports exclusive federal jurisdiction under section 1338. As a result, Texas courts have 

jurisdiction over NFTD’s claims against Howard and Haynes and Boone, and we thus have 

jurisdiction over this appeal. 

III. 

Attorney Immunity 

We now turn to the issue Howard and Haynes and Boone present in their petition for 

review. Despite the complicated background and the jurisdictional issue, the substantive issue is 

straightforward: Does attorney immunity apply to actions a lawyer takes on behalf of a client 

outside of the litigation context? We hold that it does, so long as the lawyer’s conduct constitutes 

the “kind” of conduct the attorney-immunity defense protects. 
12 

The roots of the attorney-immunity defense 

Attorney immunity is an affirmative defense that “stem[s] from the broad declaration over 

a century ago 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. App.—

Dallas 1910, writ ref’d)). But the defense’s roots actually go far deeper: like much of our common 

law, the recognition of attorney immunity began as a British import. 

In 1861, the House of Lords held in Robertson v. Fleming that a group of sureties could 

not sue a debtor’s solicitor for drafting a security agreement that failed to provide them proper 

security.12 The court reasoned that the solicitor’s duty arose only through privity of contract with 

his client and did not extend to an adverse party who did not share that privity.13 Eighteen years 

later, the United States Supreme Court relied on Robertson in Savings Bank v. Ward, 100 U.S. 195 

(1879). Ward arose when an attorney who was hired to examine title to a piece of real property 

wrote a report declaring his client’s title good and the property unencumbered. Id. at 197. As it 

turns out, the attorney failed to discover that his client had actually sold the property through a 

duly recorded conveyance. Id. at 196. The client nevertheless took the attorney’s report to a bank 

and secured a loan with a deed of trust to the property that he did not own. Id. at 197. When the 

client defaulted on the loan and the bank realized it could not sell the property, it sued the attorney. 

12 See Robert E. Mallen, 1 LEGAL MALPRACTICE § 7.5 (2021) [hereinafter Mallen] (citing and discussing 

Robertson v. Fleming (1861) 4 Macq. 167 (H.L. Sc.)). 

13 Id. 
13 

The Court held that the bank could not recover from the attorney because no privity of 

contract existed between them. Id. at 200. “[T]o restrain the remedy from being pushed to an 

impracticable extreme,” the Court held that actionable negligence must be limited to situations in 

which a legal duty exists, whether “arising from contract or otherwise.” Id. at 202 (quoting Kahl 

v. Love, 37 N.J.L. 5, 8 (Sup. Ct. 1874)). Quoting from Robertson, the Court stated, “He only who, 

by himself or another as his agent, employs the attorney to do the particular act in which the alleged 

neglect has taken place can sue him for that neglect, and that employment must be affirmed in the 

declaration of the suit in distinct terms.” Id. Thus, “[t]he initial American rule became that, without 

fraud, collusion, or privity of contract, an attorney is not liable for injuries to others while 

representing a client.” Mallen § 7:5. 

Over the next century, the rule became “greatly liberalized, and the courts have permitted 

a plaintiff not in privity to recover damages in many situations for the negligent performance of a 

contract.” Biakanja v. Irving, 320 P.2d 16, 18 (Cal. 1958) (allowing recovery against attorney for 

drafting a faulty will); see Lucas v. Hamm, 364 P.2d 685, 688 (Cal. 1961) (“It follows that the lack 

of privity between [non-client] plaintiffs and [attorney] defendant does not preclude plaintiffs from 

maintaining an action in tort against defendant.”); Ultramares Corp. v. Touche, 174 N.E. 441, 445 

(N.Y. 1931) (“The assault upon the citadel of privity is proceeding in these days apace.”) (Cardozo, 

C.J.). In extending an attorney’s potential liability beyond the privity requirement, courts generally 

relied on a third-party-beneficiary theory, or on the concept of foreseeability, or on the 

unreasonableness of the non-client’s reliance on the attorney’s conduct. See, e.g., Pelham v. 

Griesheimer, 440 N.E.2d 96, 99 (Ill. 1982) (“[T]he best approach is that the plaintiffs must allege 

and prove facts demonstrating that they are in the nature of third-party intended beneficiaries of 
14 

the relationship between the client and the attorney in order to recover in tort.”); Goodman v. 

Kennedy, 556 P.2d 737, 739 (Cal. 1976) (holding that defendant attorney owed no duty to third 

parties who relied on faulty advice the attorney gave his clients “in the absence of any showing 

that the legal advice was foreseeably transmitted to or relied upon by plaintiffs or that plaintiffs 

were intended beneficiaries of a transaction to which the advice pertained”). But despite the 

attorney-immunity defense’s relaxation in some courts, “no jurisdiction has found a duty of care 

based on negligent services by an attorney to an adverse party.” Mallen § 7:8.14

The attorney-immunity defense in Texas 

This Court relied on the privity theory in our 1996 decision, Barcelo v. Elliott, 923 S.W.2d 

575, 578–79 (Tex. 1996). In Barcelo, the Court held that the beneficiaries of a trust could not 

recover from an attorney who negligently drafted the trust agreement because the attorney had 

been hired by the settlor and owed no duty to the intended beneficiaries. Id. at 576. In adopting 

this rule, the Court reasoned that the threat of litigation from and liability to third parties would 

divide the attorney’s loyalties. Id. at 578. “Without this ‘privity barrier,’” we explained, “clients 

would lose control over the attorney-client relationship, and attorneys would be subject to almost 

unlimited liability.” Id. at 577. To “ensure that attorneys may in all cases zealously represent their 

clients without the threat of suit from third parties compromising that representation,” the Court 

established “a bright-line privity rule which denies a cause of action to all beneficiaries whom the 

attorney did not represent.” Id. at 578–79. 

14 A more thorough history of the extension of potential liability beyond privity can be found in Donald B. 

Hilliker, Attorney Liability to Third Parties: A Look to the Future, 36 DEPAUL L. REV. 41, 55–58 (1986). 
15 

We blurred that bright line a bit, however, a few years later, in McCamish, 991 S.W.2d at 

793. There, we held that in some circumstances, a non-client may bring a negligentmisrepresentation claim against an attorney. Id. at 791. We noted, “Other jurisdictions have 

indicated a willingness to subject lawyers to [such a] claim by a nonclient in connection with the 

preparation of different types of evaluations, given the proper circumstances,” and we cited those 

“proper circumstances” as including drafting warranty deeds, title certificates, offering statements 

and memoranda, and annual reports—in other words, circumstances outside of the litigation 

context. Id. at 793. 

We reasoned in McCamish, however, that permitting a non-client to bring a negligentmisrepresentation claim against an attorney would not “undermine” the privity requirement if that 

claim arose not from the “duty a professional owes his or her clients or others in privity, but on an 

independent duty to the nonclient based on the professional’s manifest awareness of the nonclient’s 

reliance on the misrepresentation and the professional’s intention that the nonclient so rely.” Id. at 

791, 792. To determine whether the non-client could have justifiably relied on the attorney’s 

representations, we explained, “one must consider the nature of the relationship” not just between 

the attorney and the non-client, but “between the attorney, client, and nonclient.” Id. at 794. 

Generally, we explained, “a third party’s reliance on an attorney’s representation is not justified 

when the representation takes place in an adversarial context,” including “business and 

commercial” contexts. Id. (quoting 1 Ronald E. Mallen and Jeffrey M. Smith, LEGAL 

MALPRACTICE, § 7.10 (4th ed. 1996)). 

When it is difficult to determine whether the circumstances were adversarial or nonadversarial, we explained that “the characterization of the inter-party relationship should be 
16 

guided, at least in part, by ‘the extent to which the interests of the client and the third party are 

consistent with each other.’” Id. (quoting Jay M. Feinman, Attorney Liability to Nonclients, 31 

TORT & INS. L.J. 735, 750 (1996)). In other words, when the client and non-client shared the same 

interest, it is more likely that the non-client could have justifiably relied on the attorney’s 

representations. But when the client and non-client had adverse interests and the attorney was 

acting in an adversarial context in the interests of the client, the non-client could not have 

justifiably relied on the attorney’s representations and cannot recover from the attorney. 

When the Court later decided Cantey Hanger, we made little mention of “privity.” Instead, 

we focused on the kind of conduct that falls within the scope of attorney immunity. See 467 S.W.3d 

at 481–84. The plaintiff in Cantey Hanger alleged that the attorneys who represented her thenhusband in a divorce proceeding had committed fraud by falsifying a bill of sale to shift tax 

liabilities from the sale of an airplane from her husband to her. Id. at 479–80. We held that attorney 

immunity barred the claim because “[e]ven 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.’” Id. at 481 (quoting Toles v. Toles, 113 S.W.3d 899, 910–11 (Tex. App.—Dallas 

2003, no pet.)) (emphasis added). In support of this standard, we also cited another decision in 

which a court of appeals explained that an attorney “cannot be held liable to a third party for 

conduct that requires the office, professional training, skill, and authority of an attorney.” Id. at 

481–82 (emphasis added) (quoting Dixon Fin. Servs., Ltd. v. Greenberg, Peden, Siegmyer 

& Oshman, P.C., No. 01-06-00696-CV, 2008 WL 746548, at *7 (Tex. App.—Houston [1st Dist.] 

Mar. 20, 2008, pet. denied) (mem. op. on reh’g)). Under this standard, “an attorney’s conduct may 

be wrongful but still fall within the scope of client representation” and thus be protected by attorney 
17 

immunity. Id. at 485. Because the attorneys’ alleged conduct in Cantey Hanger “was within the 

scope of its representation” of their client and “was not foreign to the duties of an attorney,” we 

held that the attorneys were “protected by attorney immunity.” Id. (emphasis added). 

We noted in Cantey Hanger that a “consensus [existed] 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.’” Id. at 481 (emphasis added) (quoting Alpert 

v. Crain, Caton & James, P.C., 178 S.W.3d 398, 405 (Tex. App.—Houston [1st Dist.] 2005, pet. 

denied)). But we also stated more broadly that “an attorney does not owe a professional duty of 

care to third parties who are damaged by the attorney’s negligent representation of a client.” Id. 

Because we concluded that the law firm’s allegedly fraudulent conduct occurred “within the scope 

of its duties in representing its client in litigation,” we expressly did not consider whether attorney 

immunity could apply “to an attorney’s conduct that is unrelated to litigation but nevertheless falls 

within the ambit of client representation and ‘requires the office, professional training, skill, and 

authority of an attorney.’” Id. at 482 n.6 (quoting Dixon, 2008 WL 746548, at *7). And although 

we observed that, within the litigation context, “other mechanisms are in place to discourage and 

remedy such conduct, such as sanctions, contempt, and attorney disciplinary proceedings,” we 

specifically noted that courts of appeals “have applied attorney immunity (or indicated that it could 

apply) outside the litigation context.” Id. at 482 & n.6. 

 We next addressed attorney immunity in Youngkin v. Hines, 546 S.W.3d 675 (Tex. 2018). 

We held in Youngkin that the attorney-immunity defense barred a non-client’s claim that his 

opponents’ attorney fraudulently entered into a settlement agreement knowing his clients did not 

intend to comply with the agreement and then prepared fraudulent deeds to deprive the non-client 
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of his property. Id. at 678–79. Relying on Cantey Hanger, we reaffirmed that whether attorney 

immunity applies depends on “the kind of conduct at issue rather than the alleged wrongfulness of 

said conduct.” Id. at 681. Because the “defense exists to promote ‘loyal, faithful, and aggressive 

representation’ by attorneys, which it achieves, essentially, by removing the fear of personal 

liability,” we confirmed that immunity applies when a non-client’s claim is based on an attorney’s 

conduct “within the scope of his representation of his clients,” as opposed to conduct that is 

“outside the scope of his representation of his client” or “foreign to the duties of a lawyer.” Id. at 

681, 682 (emphases added) (citing Cantey Hanger, 467 S.W.3d at 481–82). 

Our description of the defense in Youngkin made no reference to the litigation context. See 

id. at 682 (noting that Cantey Hanger “cited approvingly” to Alpert, a case denying claims based 

on “acts taken and communications made to facilitate the rendition of legal services,” which 

included “filing lawsuits and pleadings, providing legal advice, and being aware of settlement 

negotiations” (quoting Cantey Hanger, 467 S.W.3d at 484)). As in Cantey Hanger, Youngkin 

involved only conduct within the litigation context, and we did not address whether attorney 

immunity applies to conduct beyond that context. 

Last term, we addressed the issue again in Bethel v. Quilling, Selander, Lownds, Winslett 

& Moser, P.C., 595 S.W.3d 651, 654 (Tex. 2020). The plaintiff in Bethel sued her opponent’s 

attorney for fraud, trespass to chattel, and conversion, alleging that the attorney intentionally 

destroyed evidence that was key to her claims against the attorney’s client. Id. She urged us to 

recognize an exception to the attorney-immunity defense by allowing a non-client’s claims against 

her opponent’s attorney when the attorney engages in “criminal conduct during the course of 

litigation.” Id. at 657. We declined to recognize such an exception, just as we had previously 
19 

declined to recognize an exception for fraud claims, because it would “significantly undercut” the 

protections of attorney immunity. Id. Instead, we held that even “criminal conduct is not 

categorically excepted from the protections of attorney civil immunity when the conduct alleged 

is connected with representing a client in litigation.” Id. Because the attorney’s allegedly criminal 

conduct “involved the provision of legal services,” we concluded that the conduct was protected 

by attorney immunity. Id. at 658 (emphasis added). But because Bethel, like Cantey Hanger and 

Youngkin, involved only litigation-related conduct, we did not address whether attorney immunity 

would apply outside of that context. See id. at 657–58. 

The limits of attorney immunity 

In each of these cases, and in another case we decide today, we confirmed that the attorneyimmunity defense is not without its limits. In Cantey Hanger, for example, although we 

acknowledged that attorney immunity extends even “to an attorney’s knowing participation in 

fraudulent activities on his client’s behalf,” we agreed that an attorney’s “participation in 

‘independently fraudulent activities’ is considered ‘foreign to the duties of an attorney’ and is not 

shielded from liability.” 467 S.W.3d at 483 (emphases added) (quoting Alpert, 178 S.W.3d at 

406) (citing Likover v. Sunflower Terrace II, Ltd., 696 S.W.2d 468, 472 (Tex. App.—Houston [1st 

Dist.] 1985, no writ)); see Cunningham v. Tarski, 365 S.W.3d 179, 192 (Tex. App.—Dallas 2012, 

pet. denied). We explained that although fraud is “not an exception” to attorney immunity, “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.” Cantey Hanger, 467 S.W.3d at 484. When an attorney personally participates 

“in a fraudulent business scheme with his client,” as opposed to on his client’s behalf, the attorney 
20 

“will not be heard to deny his liability” because “such acts are entirely foreign to the duties of an 

attorney.” Id. at 482 (quoting Poole v. Hous. & T.C. Ry. Co., 58 Tex. 134, 137 (1882)). 

 In another decision issued today, we expound further on the attorney-immunity defense’s 

limits. See Landry’s, — S.W.3d —. The non-client in Landry’s sued its opponent’s attorneys for 

defamation, business disparagement, and other tortious conduct arising from the attorneys’ 

conduct in issuing press releases repeating their client’s allegations against the non-client and 

publishing those press releases and allegations on the internet and through social media. Id. at —. 

The attorneys asserted immunity, but we held that immunity did not apply because an “attorney 

who repeats his client’s allegations to the media or the public for publicity purposes is not acting 

in the unique, lawyerly capacity to which Texas law affords the strong protection of immunity.” 

Id. at —. Although the attorneys were acting on their client’s behalf when they issued and posted 

their client’s allegations, we confirmed that immunity applies only when the attorney’s actions 

involve “the uniquely lawyerly capacity of one who possesses ‘the office, professional training, 

skill, and authority of an attorney.’” Id. at — (quoting Cantey Hanger, 467 S.W.3d at 482). 

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,” we concluded that such 

publicity statements, “while sometimes made by lawyers, do not partake of ‘the office, 

professional training, skill, and authority of an attorney.’” Id. at —. Attorney immunity, we 

explained, “does not apply to an activity simply because attorneys often engage in that activity,” 

even if the activity would “further the representation.” Id. In short, “attorney immunity will not 

protect a lawyer when his ‘acts are entirely foreign to the duties of an attorney.’” Id. at — (quoting 

Cantey Hanger, 467 S.W.3d at 482). But as in our prior decisions, we did not address in Landry’s
21 

whether attorney immunity applies beyond the litigation context because the “allegedly 

defamatory public statements arose from anticipated litigation.” Id. at — n.4. 

 Summarizing our jurisprudence, attorney immunity protects an attorney against a nonclient’s claim when the claim is based on conduct that (1) constitutes the provision of “legal” 

services involving the unique office, professional skill, training, and authority of an attorney and

(2) the attorney engages in to fulfill the attorney’s duties in representing the client within an 

adversarial context in which the client and the non-client do not share the same interests and 

therefore the non-client’s reliance on the attorney’s conduct is not justifiable. See id. at — (holding 

immunity did not apply because the conduct had “little to do with ‘the office, professional training, 

skill, and authority of an attorney’” and was not “part of the discharge” of a “lawyer’s duties in 

representing his or her client” (quoting Cantey Hanger, 467 S.W.3d at 481)); see also Bethel, 595 

S.W.3d at 658; Youngkin, 546 S.W.3d at 681; McCamish, 991 S.W.2d at 794. Whether the defense 

applies depends on whether the claim is based on this “kind” of conduct, not on the nature of the 

conduct’s alleged wrongfulness. Bethel, 595 S.W.3d at 657; Youngkin, 546 S.W.3d at 681. 

The non-litigation context 

As we have explained, our prior decisions have discussed attorney immunity as applied to 

claims based on conduct within the litigation context and do not address whether the defense also 

applies to conduct outside of that context. Other courts, however, have tried to read the tea leaves, 

as they must. See, e.g., LJH, Ltd. v. Jaffe, No. 4:15-CV-00639, 2017 WL 447572, at *3 (E.D. Tex. 

Feb. 2, 2017) (holding that “the attorney immunity doctrine is not limited to only litigation” 

because this Court “cited two cases ‘as examples of cases in which courts have applied attorney 

immunity (or indicated that it could apply) outside the litigation context’” (quoting Cantey Hanger, 
22 

467 S.W.3d at 482 n.6)).15 In Troice v. Greenberg Traurig, L.L.P., 921 F.3d 501, 506 (5th Cir. 

2019), the Fifth Circuit finally hazarded an Erie guess that “the Supreme Court of Texas would 

apply the attorney immunity doctrine in the non-litigation context.” It noted a “trend among the 

Texas courts of appeals” toward viewing attorney immunity “in a comprehensive manner.” Id.

That “comprehensive view,” it reasoned, “most likely” includes the “multitude of attorneys that 

routinely practice and advise clients in non-litigation matters.” Id.

Today we confirm that attorney immunity applies to claims based on conduct outside the 

litigation context, so long as the conduct is the “kind” of conduct we have described above. We 

reach this conclusion because we see no meaningful distinction between the litigation context and 

the non-litigation context when it comes to the reasons we have recognized attorney immunity in 

the first place. We have recognized attorney immunity because attorneys are duty-bound to 

competently, diligently, and zealously represent their clients’ interests while avoiding any 

conflicting obligations or duties to themselves or others. See Cantey Hanger, 467 S.W.3d at 488 

(Green, J., dissenting); Barcelo, 923 S.W.2d at 578–79; Bd. of Law Exam’rs v. Stevens, 868 

S.W.2d 773, 780 (Tex. 1994) (describing how Texas disciplinary rules require attorneys to 

zealously represent their clients); see also TEX. DISCIPLINARY RULES PROF’L CONDUCT R. 1.01 & 

cmt. 6, 1.06, 1.08, 2.02. Attorney immunity exists to promote such “loyal, faithful, and aggressive 

representation” by alleviating in the mind of the attorney any fear that he or she may be sued by 

15 See also Dorrell v. Proskauer Rose LLP, No. 3:16-CV-1152-N, 2017 WL 6764690, at *4 (N.D. Tex. Nov. 

2, 2017) (“Although the Fifth Circuit has expressly declined to decide the issue, other federal courts interpreting Texas 

law on attorney immunity have consistently determined that attorney immunity may apply outside of formal 

litigation.”) (citations omitted). 
23 

or held liable to a non-client for providing such zealous representation. Youngkin, 546 S.W.3d at 

681 (citing Cantey Hanger, 467 S.W.3d at 481); see also Barcelo, 923 S.W.2d at 578. 

An attorney’s duty to provide such loyal representation does not arise only in a litigation 

context. Zealous representation must occur not just in litigation, but in “all professional functions” 

of an attorney. TEX. DISCIPLINARY RULES PROF’L CONDUCT preamble ¶ 3; see Mallen, § 7:1 (“The 

adversary relationship is not limited to litigation.”). “An attorney’s duty to represent a client 

zealously begins as soon as ‘the client has requested the lawyer to render legal services and the 

lawyer has agreed to do so.’” Hanna v. Niemann, No. 03-98-00708-CV, 1999 WL 394894, at *3 

(Tex. App.—Austin June 17, 1999, pet. denied) (not designated for publication) (quoting TEX.

DISCIPLINARY RULES PROF’L CONDUCT preamble ¶ 12). Allowing a non-client to sue an attorney 

based on the “kind” of conduct the immunity defense protects would create as much of a risk of 

dividing an attorney’s loyalties in a transactional context as it would in a litigation context. 

We are aware, however, that the protections a non-client enjoys against an opponent’s 

attorney’s wrongful conduct in a non-litigation context are not as numerous as the protections 

available within a litigation context. As we have observed, the litigation context offers “other 

mechanisms,” besides a suit against the attorney, to discourage and remedy an opposing attorney’s 

wrongful conduct, “such as sanctions, contempt, and attorney disciplinary proceedings.” Cantey 

Hanger, 467 S.W.3d at 482. Although the first two of these mechanisms are only available in the 

litigation context, the third is available to any non-client who complains of an attorney’s wrongful 

conduct. And as occurred in this case, non-clients who are harmed by an attorney’s wrongful 

conduct in representing the other party in a business transaction or other non-litigation context can 

usually sue the other party, who in turn can sue the attorney for indemnification for the damage 
24 

the attorney’s wrongful conduct causes. We agree that these mechanisms provide sufficient 

incentive to discourage attorneys from engaging in wrongful conduct within the non-litigation 

context. We therefore hold that the attorney-immunity defense applies in all adversarial contexts 

in which an attorney must zealously and loyally represent his or her client, so long as the conduct 

constitutes the “kind” of conduct attorney immunity protects. 

Application 

In this case, NFTD does not dispute that most of its claims are based on conduct in which 

Howard and Haynes and Boone engaged to represent their client, TEFKAB. And NFTD does not 

dispute that the negotiation and completion of the sale of the Bernardo brand assets from TEFKAB 

to NFTD constituted an adversarial context in which the two parties did not share the same 

interests. Howard and Haynes and Boone owed the duty of loyal and zealous representation in 

connection with that transaction exclusively to TEFKAB, and not to NFTD. See RESTATEMENT 

(THIRD) OF THE LAW GOVERNING LAWYERS § 51 cmt. c (Am. Law Inst. 2000) (“Similarly, a lawyer 

representing a client in an arm’s-length business transaction does not owe a duty of care to 

opposing nonclients . . . .”). NFTD was represented by its own counsel, who owed that same duty 

to NFTD. 

NFTD contends, however, that even if attorney immunity applies to claims based on 

conduct in the non-litigation context, at least some of Howard’s allegedly fraudulent conduct was 

not the kind of legal services to which the defense applies. NFTD points out that TEFKAB hired 

Howard to represent it not just as a lawyer, but for “any and all business, financial and legal 

matters.” Consistent with this broad engagement, NFTD asserts that Howard assisted TEFKAB 
25 

not just on legal matters, but also on financial matters and business decisions that he made on the 

company’s behalf. 

According to NFTD, for example, Howard participated in TEFKAB’s decision to sell the 

Bernardo brand assets and then served as TEFKAB’s “broker” in the transaction, in which role he 

prepared the Confidential Business Profile that misrepresented the assets’ validity and value. These 

roles, NFTD contends, do not involve the unique office, training, skills, and authority of an 

attorney, but instead could have been performed by anyone having sufficient business or marketing 

skills. And in addition, NFTD contends, Howard was acting not in TEFKAB’s interest, but only 

in his own interest when he met with and made misrepresentations to Cooper and Miller while 

trying to solicit NFTD to hire him as its attorney once the sale went through. NFTD argues that 

this conduct was “foreign to the duties” Howard owed to his client. At a minimum, NFTD 

contends, the evidence creates a fact issue on whether its claims are wholly based on the “kind” of 

conduct immunity protects, and that fact issue requires reversing the trial court’s summary 

judgment. NFTD raised these arguments in both the trial court and the court of appeals, and again 

in its briefing in this Court. 

Howard and Haynes and Boone dispute these assertions and arguments, contending that 

regardless of the “labels” NFTD places on their alleged conduct, all of the conduct occurred in 

connection with the negotiation and drafting of the asset-purchase agreement, which fell within 

the scope of their representation of TEFKAB. 

Because the court of appeals concluded that attorney immunity does not apply in the nonlitigation context, it did not reach these arguments. And both parties have made these arguments, 

both to the court of appeals and to this Court, without the benefit of today’s decision in Landry’s, 
26 

which provides crucial guidance regarding the limitations on the “kind” of conduct that attorney 

immunity protects. Under these circumstances, we conclude that we should remand this case to 

the court of appeals so that it can consider these issues it did not reach. See Univ. of the Incarnate 

Word v. Redus, 518 S.W.3d 905, 911 (Tex. 2017). 

IV. 

Conclusion 

We confirm that attorney immunity provides a defense to a non-client’s claims based on 

an attorney’s conduct that (1) constitutes the provision of “legal” services involving the unique 

office, professional skill, training, and authority of an attorney and (2) the attorney engages in to 

fulfill the attorney’s duties in representing the client within an adversarial context in which the 

client and the non-client do not share the same interests. And in light of the defense’s purposes, 

we hold that it applies to claims based on conduct the attorney performed in a non-litigation 

context, so long as the conduct qualifies as this “kind” of conduct. We reverse the court of appeals’ 

judgment holding that attorney immunity does not apply in the non-litigation context, and we 

remand the case to that court to consider whether the summary-judgment evidence conclusively 

established that the conduct at issue here qualifies as that “kind” of conduct. 

 

_____________________ 

Jeffrey S. Boyd 

Justice 

Opinion delivered: May 21, 2021