Attorney Immunity Shields Lawyer Accused of Coercing Deponent to ‘Change’ Testimony

Sept. 17 — The attorney immunity doctrine shields lawyers who defended BP North America in a wrongful death suit from liability to a co-defendant engineering firm that accused BP's lawyers of threatening to terminate BP's contracts with the engineering firm if one of its executives did not change deposition testimony that was harmful to BP, the Texas Court of Appeals, Fourteenth District, ruled Sept. 9.

Gaia Environmental Inc. argued that BP's lawyers engaged in witness tampering and were thus precluded from raising the “attorney immunity” defense in Gaia's action against the lawyers for tortious interference.

That doctrinal shield—which generally insulates a lawyer from liability to a nonclient for actions the lawyer took while representing a client—does not apply where a lawyer's allegedly actionable conduct involved fraud, misrepresentation or criminal acts.

But the court said Gaia could not invoke “the criminal exception to attorney immunity” because it did not establish that BP's lawyers “committed the criminal offense of witness tampering” by warning the engineering firm that BP might pull its contracts with Gaia if the engineering firm's executive did not “change his testimony” in the wrongful death action.

“Under the circumstances presented in this case, [counsel]'s alleged conduct falls within the realm of zealous and aggressive representation in discharging their duties to their client in the context of the underlying lawsuit,” the panel said in an opinion by Justice Marc W. Brown.

Co-Defendants Become Opponents

In 2003, Gaia contracted to do engineering work on a BP-owned site. The contract required Gaia to defend and indemnify BP against negligence claims.

In 2008, a Gaia employee was killed in an accident involving a backhoe on BP property, leading to a wrongful death action against BP and Gaia as co-defendants.

James B. Galbraith and his firm, McLeod, Alexander, Powel & Apffel P.C. (MAPA), were retained to defend BP. Galbraith tendered an indemnification request, but BP ultimately defended itself after learning that Gaia was not insured, according to the court.

A dispute arose over whether the deceased employee was working on a project covered by the 2003 contract or directed by BP; a Gaia executive testified at a deposition that the project was not covered by the contract.

Galbraith subsequently contacted Gaia's counsel and “stated that if [the executive] was not willing to change what he had said at his deposition, BP was not going to renew its contracts” with Gaia, the opinion states.

In 2011, Gaia and AXL Industries LLC, an environmental consulting company in negotiations to purchase Gaia, filed suit against BP, Galbraith and his firm. The complaint alleged tortious interference and civil conspiracy claims against all defendants; and aiding and abetting claims against Galbraith and his firm.

Defining ‘Witness Tampering.'

The appeals court held that the attorney immunity doctrine barred the plaintiffs' claims against Galbraith and his firm.

The panel said the plaintiffs could not invoke “the criminal exception to attorney immunity” because they could not establish that Galbraith committed witness tampering.

That offense requires a showing that an accused sought to coerce a witness “to testify falsely,” Brown noted. “[T]he question we must answer is whether an allegation that Galbraith sought to threaten or coerce [the Gaia executive] to ‘change his testimony' rises to the level of alleging that essential criminal element,” he said.

The court said that element was not satisfied.

Quoting case law construing the phrase “to testify falsely,” the court said: “It is one thing to ask a witness to swear to facts which are knowingly false. It is another thing, in an arms-length interview with a witness, for an attorney to attempt to persuade her, even aggressively, that her initial version of a certain fact situation is not complete or accurate.”

“Here, Galbraith and MAPA did not ask [opposing counsel] to ask [Gaia's executive] to swear to knowingly false facts,” the court stated. “Instead, Galbraith and MAPA attempted to aggressively persuade [opposing counsel], allegedly via threat of legal action, that [Gaia's executive] should change his initial version of the fact situation at hand to align with their client BP's version.”

“Gaia's and AXL's allegation simply does not amount to pleading the requisite criminal element that [the executive] ‘testify falsely,'” the court concluded.

Chief Justice Kem Thompson Frost and Justice John Donovan joined the opinion.

John H. Kim and Michael Charles Watson, Houston, represented Gaia Environmental Inc. and AXL Industries LLC. Winget, Spadafora & Schwartzberg represented Galbraith and his firm.

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