Dixon Financial Services, Ltd. v. Greenberg, Peden, Siegmyer & Oshman, P.C

In Dixon Fin. Servs., Ltd. v. Greenberg, Peden, Siegmyer & Oshman, P.C., No. 01-06-00696-CV, 2008 WL 746548 (Tex. App.--Houston 1st Dist. Mar. 20, 2008, pet. denied) the plaintiffs sued a law firm for fraud and civil conspiracy, alleging that the firm had intentionally misrepresented the scope of an arbitration award in order to obtain all of the stock held, when in fact the attorneys knew that only a part of the stock was subject to the award. The attorneys filed a petition to obtain a temporary restraining order to secure the arbitration award. Id. The Court noted that the signing and filing of an application for a temporary restraining order to aid in the recovery of monies owed to a client under an arbitration award is not conduct "foreign to the duties of an attorney." Id. And "whether the substance of the communications was incorrect or overstated did not change the kind of conduct in which the attorney had engaged." The Court explained that "characterizing an attorney's action in advancing his client's rights as fraudulent does not change the rule that an attorney cannot be held liable for discharging his duties to his client." Id. And the Court held that "a plaintiff . . . should not be able to 'salvage an otherwise untenable claim merely by characterizing it as tortious.'" Id. If an attorney's conduct violates his professional responsibilities, the remedy is public, not private. Id. In sum, the Court discussed the law regarding an attorney's immunity from suit with respect to action he takes in the representation of a client. The Court recognized that to promote zealous representation, courts have held that an attorney has "qualified immunity" from civil liability, with respect to non-clients, for actions taken in connection with representing a client in litigation. The Court agreed with the Greenberg Peden defendants that the conduct alleged by Dixon Financial and Hyperdynamics as being tortious was not actionable because it constituted conduct undertaken by an attorney to assist a client in securing and recovering an arbitration award. For this reason, the Court concluded that the Greenberg Peden defendants were entitled to summary judgment as a matter of law. Id.